Florida Senate - 2008 SB 1442
By Senator Dockery
15-02929-08 20081442__
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A bill to be entitled
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An act relating to exploited children; amending s. 92.56,
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F.S.; providing specified protections to victims in any
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civil or criminal proceeding involving the production,
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possession, or promotion of child pornography where the
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victim depicted in the image or images is a party to the
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case or a witness in the case; permitting use of a
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pseudonym to designate the victim of a crime involving a
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victim of production, possession, or promotion of child
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pornography; revising provisions concerning use of victim
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pseudonyms to specify that they may be used in civil and
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criminal proceedings; amending s. 800.04, F.S., relating
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to lewd or lascivious exhibition, to conform to changes
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made by the act; creating s. 847.002, F.S.; requiring law
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enforcement officers submitting a case for prosecution
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that involves the creation, possession, or promotion of
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child pornography to provide specified information to
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prosecutors; requiring prosecutors to pursue prosecutions
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regarding images of child pornography wherein a known
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victim from within this state is depicted; requiring
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prosecutors to enter specified information in a database
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maintained by the Attorney General; creating s. 847.01355,
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F.S., relating to lewd and lascivious exhibition on a
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computer; providing an exception; providing penalties;
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creating s. 847.01357, F.S.; providing a civil remedy for
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any person who is a victim of a listed sexual abuse crime
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wherein any portion of that abuse was used in the
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production of child pornography and who suffers personal
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or psychological injury as a result of the production,
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promotion, or possession of such images; specifying
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damages to persons who are further exploited following a
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recovery under this section; providing for limitation of
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actions; providing for confidential pseudonyms to
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specified claimants; precluding a defense to certain civil
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actions; permitting the Attorney General to pursue cases
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on behalf of victims; providing for disposition of damages
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and attorney's fees; amending s. 960.03, F.S.; including
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crimes that result in psychological injury or trauma as
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compensable crimes for purposes of victims compensation;
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expanding the definition of "victim" for purposes of
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victim compensation to include any minor who has suffered
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physical or psychological injury as a result of online
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sexual solicitation and including any person who, while a
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child, was depicted in an image of child pornography;
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948.32, F.S.; conforming provisions to changes made by the
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act; providing an effective date.
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WHEREAS, children who are sexually abused and then exploited
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by the creation of permanent images of that sexual abuse through
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child pornography are further harmed by the continued possession,
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promotion, and distribution of those images on the Internet, and
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WHEREAS, the possession of child pornography is not a
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victimless crime, and over 1,200 victims of child pornography are
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known by law enforcement, over 30 of whom were citizens of this
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state at the time of their abuse, and
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WHEREAS, victims of child pornography suffer repeated
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unending abuse not only as children, but throughout their lives,
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by those individuals who engage in the collection and
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distribution of the image of the victim's sexual abuse and
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exploitation, and
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WHEREAS, victims of child pornography currently do not
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receive notice, consideration, compensation, or any other rights
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assured to crime victims in this state pursuant to chapter 960,
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F.S., and
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WHEREAS, victims of child pornography are entitled to be
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heard and considered in any case involving the production,
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possession, and promotion of an image of their sexual-abuse, and
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these victims are due all the rights and protections afforded
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every other crime victim in this state, NOW, THEREFORE,
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Be It Enacted by the Legislature of the State of Florida:
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Section 1. Subsections (1) and (3) of section 92.56,
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Florida Statutes, are amended to read:
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92.56 Judicial proceedings and court records involving
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sexual offenses.--
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(1)(a) All court records, including testimony from
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witnesses, that reveal the photograph, name, or address of the
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victim of an alleged offense described in chapter 794 or chapter
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800, or act of child abuse, aggravated child abuse, or sexual
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performance by a child as described in chapter 827, are
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confidential and exempt from the provisions of s. 24(a), Art. I
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of the State Constitution and may not be made public if, upon a
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showing to the trial court with jurisdiction over the alleged
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offense, the state or the victim demonstrates that:
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1.(a) The identity of the victim is not already known in
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the community;
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2.(b) The victim has not voluntarily called public
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attention to the offense;
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3.(c) The identity of the victim has not otherwise become a
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reasonable subject of public concern;
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4.(d) The disclosure of the victim's identity would be
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offensive to a reasonable person; and
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5.(e) The disclosure of the victim's identity would:
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a.1. Endanger the victim because the assailant has not been
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apprehended and is not otherwise known to the victim;
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b.2. Endanger the victim because of the likelihood of
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retaliation, harassment, or intimidation;
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c.3. Cause severe emotional or mental harm to the victim;
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d.4. Make the victim unwilling to testify as a witness; or
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e.5. Be inappropriate for other good cause shown.
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(b) In any civil or criminal proceeding involving the
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production, possession, or promotion of child pornography where
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the victim depicted in the image or images is a party to the case
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or a witness in the case, the showing required in subparagraph
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(a)1. is waived and all the protections under this section will
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apply to protect the victim's privacy.
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(3) The state may use a pseudonym instead of the victim's
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name to designate the victim of a crime described in chapter 794
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or chapter 800, or of child abuse, aggravated child abuse, or
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sexual performance by a child as described in chapter 827, or any
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crime involving a victim of production, possession, or promotion
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of child pornography as described in chapter 827 or chapter 847,
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in all court records and records of court proceedings, both civil
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and criminal.
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Section 2. Subsection (7) of section 800.04, Florida
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Statutes, is amended, and paragraph (b) of that subsection is
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renumbered as s. 847.01355, Florida Statutes, and amended, to
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read:
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800.04 Lewd or lascivious offenses committed upon or in the
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presence of persons less than 16 years of age.--
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(7) LEWD OR LASCIVIOUS EXHIBITION.--
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(a) A person who:
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1. Intentionally masturbates;
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2. Intentionally exposes the genitals in a lewd or
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lascivious manner; or
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3. Intentionally commits any other sexual act that does not
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involve actual physical or sexual contact with the victim,
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including, but not limited to, sadomasochistic abuse, sexual
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bestiality, or the simulation of any act involving sexual
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activity
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in the presence of a victim who is less than 16 years of age,
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commits lewd or lascivious exhibition.
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(b)(c) An offender 18 years of age or older who commits a
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lewd or lascivious exhibition commits a felony of the second
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(c)(d) An offender less than 18 years of age who commits a
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lewd or lascivious exhibition commits a felony of the third
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847.01355 Lewd or lascivious exhibition using a computer.--
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(1)(b) A person who:
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(a)1. Intentionally masturbates;
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(b)2. Intentionally exposes the genitals in a lewd or
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lascivious manner; or
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(c)3. Intentionally commits any other sexual act that does
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not involve actual physical or sexual contact with the victim,
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including, but not limited to, sadomasochistic abuse, sexual
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bestiality, or the simulation of any act involving sexual
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activity
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live over a computer online service, Internet service, or local
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bulletin board service and who knows or should know or has reason
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to believe that the transmission is viewed on a computer or
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television monitor by a victim in this state who is less than 16
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years of age, commits lewd or lascivious exhibition in violation
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of this section. The fact that an undercover operative or law
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enforcement officer was involved in the detection and
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investigation of an offense under this section paragraph shall
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not constitute a defense to a prosecution under this section
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paragraph.
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(2) An offender 18 years of age or older who commits a lewd
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or lascivious exhibition using a computer commits a felony of the
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or s. 775.084.
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(3) An offender less than 18 years of age who commits a
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lewd or lascivious exhibition using a computer commits a felony
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of the third degree, punishable as provided in s. 775.082, s.
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(4) A mother's breastfeeding of her baby does not under any
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circumstance constitute a violation of this section.
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Section 3. Section 847.002, Florida Statutes, is created to
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read:
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847.002 Child pornography prosecutions.--
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(1) Any law enforcement officer in this state submitting a
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case for prosecution that involves the creation, possession, or
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promotion of child pornography shall provide to the designated
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prosecutor, within 30 days of arrest of a person charged with the
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creation, possession, or promotion such child pornography a
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detailed list of all images involved in the case which contain
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the depiction of a known victim of child pornography as defined
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in s. 960.03. In addition, the arresting officer shall include
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the law enforcement contact information provided for that victim
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by the National Center for Missing and Exploited Children's Child
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Victim Identification Program.
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(2) The state attorneys and the statewide prosecutor must,
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whenever possible, pursue prosecution of those involved in the
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creation, possession, or promotion of images of child pornography
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described in subsection (1) in which a known victim from within
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this state is depicted. Further, the prosecuting agency must, in
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every filed case involving child pornography, enter the following
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information into the Victims in Child Pornography Tracking Repeat
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Exploitation database maintained by the Office of the Attorney
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General:
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(a) The case number and agency file number.
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(b) The named defendant.
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(c) The circuit court division and county.
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(d) Current court dates and the status of the case.
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(e) Contact information for the prosecutor assigned.
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(f) Verification that the prosecutor is or is not in
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possession of a victim impact statement and will use the
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statement in sentencing.
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Section 4. Section 847.01357, Florida Statutes, is created
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to read:
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847.01357 Exploited children's civil remedy.--
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(1) Any person who is a victim of a sexual abuse crime
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listed in chapter 794, chapter 800, chapter 827, or chapter 847
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wherein any portion of that abuse was used in the production of
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images of child sexual abuse, otherwise known as child
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pornography, and who suffers personal or psychological injury as
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a result of the production, promotion, or possession of such
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images, regardless of whether the sexual abuse occurred while
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such person was a minor, may bring an action in any appropriate
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state court and shall recover the actual damages such person
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sustains and the cost of the suit, including reasonable
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attorney's fees. Any victim as described in this subsection who
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is awarded damages under this subsection and who is thereafter
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exploited by the further production, possession, or promotion of
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pornographic images of his or her own victimization shall be
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deemed to have sustained damages of no less than $150,000 in
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value in any instance of the further production, possession, or
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promotion of such an image.
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(2) Notwithstanding any other provisions of law, any action
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commenced under this section must be filed within 3 years of the
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later of:
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(a) The conclusion of a related criminal case;
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(b) The notification to the victim by a member of law
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enforcement of the creation, possession, or promotion of
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pornographic images; or
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(c) In the case of a person under the age of 18, within 3
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years after the person reaches the age of 18.
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(3) Any victim who has a bona fide claim under this section
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shall, upon request, be provided a confidential pseudonym,
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pursuant to s. 92.56(1)(b), which shall be issued and maintained
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by the Department of Legal Affairs for use in all legal
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pleadings. This identifier shall be fully recognized in all
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courts in this state as a valid legal identity.
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(4) It is not a defense to a civil cause of action under
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this section that the respondent did not know the complainant or
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commit the abuse depicted in any image of child pornography.
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(5) To prevent the further exploitation of victims for
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monetary gain by any other person, the Office of the Attorney
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General shall be designated to pursue cases on behalf of any
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victim under this section. All damages obtained in such cases
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shall go to the victims and the Office of the Attorney General
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may seek reasonable attorney's fees and costs for itself under
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this section.
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Section 5. Paragraph (a) of subsection (3) of section
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960.03, Florida Statutes, is amended, subsections (10) through
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(13) of that section are renumbered as subsections (11) through
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(14), respectively, a new subsection (10) is added to that
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section, and present subsection (13) of that section is amended,
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to read:
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(3) "Crime" means:
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(a) A felony or misdemeanor offense committed by either an
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adult or a juvenile which results in psychological injury or
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trauma, physical injury, or death. The term also includes any
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such criminal act which is committed within this state but which
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falls exclusively within federal jurisdiction.
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(10) "Known victim of child pornography" means any person
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who, while under the age of 18, was depicted in any image of
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child pornography and who has been identified through a report
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generated by a member of law enforcement and provided to the
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National Center for Missing and Exploited Children's Child Victim
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Identification Program.
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(14)(13) "Victim" means:
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(a) A person who suffers personal physical injury or death
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as a direct result of a crime;
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(b) A person less than 16 years of age who was present at
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the scene of a crime, saw or heard the crime, and suffered a
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psychiatric or psychological injury because of the crime, but who
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was not physically injured; or
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(c) A person against whom a forcible felony was committed
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and who suffers a psychiatric or psychological injury as a direct
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result of that crime but who does not otherwise sustain a
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personal physical injury or death;.
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(d) A child less than 18 years of age who is a victim of
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online sexual exploitation under any provision of s. 827.071, s.
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or psychological injury as a direct result of that crime, but who
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does not otherwise sustain a personal physical injury or death;
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or
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(e) Any resident of this state of any age who, while under
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the age of 18, was depicted in any image or video, regardless of
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length, of child pornography as defined in s. 847.001 and who has
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been identified by law enforcement and the National Center for
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Missing and Exploited Children as a known victim of child
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pornography, which image or video is recovered by a law
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enforcement investigation or is related to a criminal
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prosecution.
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Section 6. Paragraph (b) of subsection (2) of section
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90.404, Florida Statutes, is amended to read:
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90.404 Character evidence; when admissible.--
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(2) OTHER CRIMES, WRONGS, OR ACTS.--
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(b)1. In a criminal case in which the defendant is charged
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with a crime involving child molestation, evidence of the
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defendant's commission of other crimes, wrongs, or acts of child
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molestation is admissible, and may be considered for its bearing
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on any matter to which it is relevant.
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2. For the purposes of this paragraph, the term "child
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molestation" means conduct proscribed by s. 794.011, or s.
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of age or younger.
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Section 7. Subsection (2) of section 92.565, Florida
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Statutes, is amended to read:
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92.565 Admissibility of confession in sexual abuse cases.--
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(2) In any criminal action in which the defendant is
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charged with a crime against a victim under s. 794.011; s.
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847.01355, or any other crime involving sexual abuse of another,
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or with any attempt, solicitation, or conspiracy to commit any of
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these crimes, the defendant's memorialized confession or
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admission is admissible during trial without the state having to
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prove a corpus delicti of the crime if the court finds in a
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hearing conducted outside the presence of the jury that the state
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is unable to show the existence of each element of the crime, and
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having so found, further finds that the defendant's confession or
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admission is trustworthy. Factors which may be relevant in
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determining whether the state is unable to show the existence of
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each element of the crime include, but are not limited to, the
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fact that, at the time the crime was committed, the victim was:
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(a) Physically helpless, mentally incapacitated, or
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mentally defective, as those terms are defined in s. 794.011;
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(b) Physically incapacitated due to age, infirmity, or any
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other cause; or
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(c) Less than 12 years of age.
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Section 8. Paragraph (e) of subsection (9) of section
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394.912, Florida Statutes, is amended to read:
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394.912 Definitions.--As used in this part, the term:
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(9) "Sexually violent offense" means:
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(e) Lewd, lascivious, or indecent assault or act upon or in
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Section 9. Section 409.2355, Florida Statutes, is amended
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to read:
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409.2355 Programs for prosecution of males over age 21 who
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commit certain offenses involving girls under age 16.--Subject to
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specific appropriated funds, the Department of Children and
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Family Services is directed to establish a program by which local
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communities, through the state attorney's office of each judicial
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circuit, may apply for grants to fund innovative programs for the
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prosecution of males over the age of 21 who victimize girls under
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Section 10. Paragraph (a) of subsection (9) of section
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775.082, Florida Statutes, is amended to read:
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775.082 Penalties; applicability of sentencing structures;
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mandatory minimum sentences for certain reoffenders previously
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released from prison.--
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(9)(a)1. "Prison releasee reoffender" means any defendant
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who commits, or attempts to commit:
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a. Treason;
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b. Murder;
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c. Manslaughter;
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d. Sexual battery;
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e. Carjacking;
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f. Home-invasion robbery;
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g. Robbery;
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h. Arson;
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i. Kidnapping;
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j. Aggravated assault with a deadly weapon;
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k. Aggravated battery;
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l. Aggravated stalking;
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m. Aircraft piracy;
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n. Unlawful throwing, placing, or discharging of a
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destructive device or bomb;
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o. Any felony that involves the use or threat of physical
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force or violence against an individual;
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p. Armed burglary;
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q. Burglary of a dwelling or burglary of an occupied
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structure; or
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within 3 years after being released from a state correctional
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facility operated by the Department of Corrections or a private
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vendor or within 3 years after being released from a correctional
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institution of another state, the District of Columbia, the
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United States, any possession or territory of the United States,
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or any foreign jurisdiction, following incarceration for an
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offense for which the sentence is punishable by more than 1 year
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in this state.
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2. "Prison releasee reoffender" also means any defendant
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who commits or attempts to commit any offense listed in sub-
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subparagraphs (a)1.a.-r. while the defendant was serving a prison
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sentence or on escape status from a state correctional facility
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operated by the Department of Corrections or a private vendor or
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while the defendant was on escape status from a correctional
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institution of another state, the District of Columbia, the
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United States, any possession or territory of the United States,
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or any foreign jurisdiction, following incarceration for an
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offense for which the sentence is punishable by more than 1 year
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in this state.
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3. If the state attorney determines that a defendant is a
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prison releasee reoffender as defined in subparagraph 1., the
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state attorney may seek to have the court sentence the defendant
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as a prison releasee reoffender. Upon proof from the state
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attorney that establishes by a preponderance of the evidence that
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a defendant is a prison releasee reoffender as defined in this
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section, such defendant is not eligible for sentencing under the
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sentencing guidelines and must be sentenced as follows:
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a. For a felony punishable by life, by a term of
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imprisonment for life;
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b. For a felony of the first degree, by a term of
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imprisonment of 30 years;
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c. For a felony of the second degree, by a term of
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imprisonment of 15 years; and
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d. For a felony of the third degree, by a term of
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imprisonment of 5 years.
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Section 11. Paragraph (d) of subsection (1) of section
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775.084, Florida Statutes, is amended to read:
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775.084 Violent career criminals; habitual felony offenders
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and habitual violent felony offenders; three-time violent felony
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offenders; definitions; procedure; enhanced penalties or
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mandatory minimum prison terms.--
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(1) As used in this act:
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(d) "Violent career criminal" means a defendant for whom
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the court must impose imprisonment pursuant to paragraph (4)(d),
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if it finds that:
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1. The defendant has previously been convicted as an adult
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three or more times for an offense in this state or other
431
qualified offense that is:
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a. Any forcible felony, as described in s. 776.08;
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b. Aggravated stalking, as described in s. 784.048(3) and
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(4);
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c. Aggravated child abuse, as described in s. 827.03(2);
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d. Aggravated abuse of an elderly person or disabled adult,
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as described in s. 825.102(2);
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e. Lewd or lascivious battery, lewd or lascivious
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molestation, lewd or lascivious conduct, or lewd or lascivious
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f. Escape, as described in s. 944.40; or
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g. A felony violation of chapter 790 involving the use or
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possession of a firearm.
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2. The defendant has been incarcerated in a state prison or
445
a federal prison.
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3. The primary felony offense for which the defendant is to
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be sentenced is a felony enumerated in subparagraph 1. and was
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committed on or after October 1, 1995, and:
449
a. While the defendant was serving a prison sentence or
450
other sentence, or court-ordered or lawfully imposed supervision
451
that is imposed as a result of a prior conviction for an
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enumerated felony; or
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b. Within 5 years after the conviction of the last prior
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enumerated felony, or within 5 years after the defendant's
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release from a prison sentence, probation, community control,
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control release, conditional release, parole, or court-ordered or
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lawfully imposed supervision or other sentence that is imposed as
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a result of a prior conviction for an enumerated felony,
459
whichever is later.
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4. The defendant has not received a pardon for any felony
461
or other qualified offense that is necessary for the operation of
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this paragraph.
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5. A conviction of a felony or other qualified offense
464
necessary to the operation of this paragraph has not been set
465
aside in any postconviction proceeding.
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Section 12. Paragraph (a) of subsection (13) and paragraph
467
(a) of subsection (16) of section 775.15, Florida Statutes, are
468
amended to read:
469
775.15 Time limitations; general time limitations;
470
exceptions.--
471
(13)(a) If the victim of a violation of s. 794.011, former
473
847.01355 is under the age of 18, the applicable period of
474
limitation, if any, does not begin to run until the victim has
475
reached the age of 18 or the violation is reported to a law
476
enforcement agency or other governmental agency, whichever occurs
477
earlier. Such law enforcement agency or other governmental agency
478
shall promptly report such allegation to the state attorney for
479
the judicial circuit in which the alleged violation occurred. If
480
the offense is a first or second degree felony violation of s.
481
794.011, and the offense is reported within 72 hours after its
482
commission, the prosecution for such offense may be commenced at
483
any time. This paragraph applies to any such offense except an
484
offense the prosecution of which would have been barred by
485
subsection (2) on or before December 31, 1984.
486
(16)(a) In addition to the time periods prescribed in this
487
section, a prosecution for any of the following offenses may be
488
commenced at any time after the date on which the identity of the
489
accused is established, or should have been established by the
490
exercise of due diligence, through the analysis of
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deoxyribonucleic acid (DNA) evidence, if a sufficient portion of
492
the evidence collected at the time of the original investigation
493
and tested for DNA is preserved and available for testing by the
494
accused:
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1. Aggravated battery or any felony battery offense under
496
chapter 784.
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2. Kidnapping under s. 787.01 or false imprisonment under
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s. 787.02.
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3. An offense of sexual battery under chapter 794.
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4. A lewd or lascivious offense under s. 800.04, or s.
502
5. A burglary offense under s. 810.02.
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7. Carjacking under s. 812.133.
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8. Aggravated child abuse under s. 827.03.
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Section 13. Paragraph (a) of subsection (4) and paragraph
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(b) of subsection (10) of section 775.21, Florida Statutes, are
509
amended to read:
510
775.21 The Florida Sexual Predators Act.--
511
(4) SEXUAL PREDATOR CRITERIA.--
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(a) For a current offense committed on or after October 1,
513
1993, upon conviction, an offender shall be designated as a
514
"sexual predator" under subsection (5), and subject to
515
registration under subsection (6) and community and public
516
notification under subsection (7) if:
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1. The felony is:
518
a. A capital, life, or first-degree felony violation, or
520
is a minor and the defendant is not the victim's parent or
522
or a violation of a similar law of another jurisdiction; or
523
b. Any felony violation, or any attempt thereof, of s.
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minor and the defendant is not the victim's parent or guardian;
529
another jurisdiction, and the offender has previously been
530
convicted of or found to have committed, or has pled nolo
531
contendere or guilty to, regardless of adjudication, any
533
victim is a minor and the defendant is not the victim's parent or
538
another jurisdiction;
539
2. The offender has not received a pardon for any felony or
540
similar law of another jurisdiction that is necessary for the
541
operation of this paragraph; and
542
3. A conviction of a felony or similar law of another
543
jurisdiction necessary to the operation of this paragraph has not
544
been set aside in any postconviction proceeding.
545
(10) PENALTIES.--
546
(b) A sexual predator who has been convicted of or found to
547
have committed, or has pled nolo contendere or guilty to,
548
regardless of adjudication, any violation, or attempted
550
the victim is a minor and the defendant is not the victim's
554
violation of a similar law of another jurisdiction when the
555
victim of the offense was a minor, and who works, whether for
556
compensation or as a volunteer, at any business, school, day care
557
center, park, playground, or other place where children regularly
558
congregate, commits a felony of the third degree, punishable as
560
Section 14. Subsections (7) and (8) of section 784.048,
561
Florida Statutes, are amended to read:
562
784.048 Stalking; definitions; penalties.--
563
(7) Any person who, after having been sentenced for a
565
prohibited from contacting the victim of the offense under s.
566
921.244, willfully, maliciously, and repeatedly follows,
567
harasses, or cyberstalks the victim commits the offense of
568
aggravated stalking, a felony of the third degree, punishable as
570
(8) The punishment imposed under this section shall run
571
consecutive to any former sentence imposed for a conviction for
573
Section 15. Paragraph (a) of subsection (3) of section
574
787.01, Florida Statutes, is amended to read:
575
787.01 Kidnapping; kidnapping of child under age 13,
576
aggravating circumstances.--
577
(3)(a) A person who commits the offense of kidnapping upon
578
a child under the age of 13 and who, in the course of committing
579
the offense, commits one or more of the following:
580
1. Aggravated child abuse, as defined in s. 827.03;
581
2. Sexual battery, as defined in chapter 794, against the
582
child;
583
3. Lewd or lascivious battery, lewd or lascivious
584
molestation, lewd or lascivious conduct, or lewd or lascivious
587
prostitution, upon the child; or
588
5. Exploitation of the child or allowing the child to be
589
exploited, in violation of s. 450.151,
590
591
commits a life felony, punishable as provided in s. 775.082, s.
593
Section 16. Paragraph (a) of subsection (3) of section
594
787.02, Florida Statutes, is amended to read:
595
787.02 False imprisonment; false imprisonment of child
596
under age 13, aggravating circumstances.--
597
(3)(a) A person who commits the offense of false
598
imprisonment upon a child under the age of 13 and who, in the
599
course of committing the offense, commits any offense enumerated
600
in subparagraphs 1.-5., commits a felony of the first degree,
601
punishable by imprisonment for a term of years not exceeding life
603
1. Aggravated child abuse, as defined in s. 827.03;
604
2. Sexual battery, as defined in chapter 794, against the
605
child;
606
3. Lewd or lascivious battery, lewd or lascivious
607
molestation, lewd or lascivious conduct, or lewd or lascivious
610
prostitution, upon the child; or
611
5. Exploitation of the child or allowing the child to be
612
exploited, in violation of s. 450.151.
613
Section 17. Paragraph (c) of subsection (2) of section
614
787.025, Florida Statutes, is amended to read:
615
787.025 Luring or enticing a child.--
616
(2)
617
(c) A person 18 years of age or older who, having been
618
previously convicted of a violation of chapter 794, or s. 800.04,
619
or s. 847.01355, or a violation of a similar law of another
620
jurisdiction, intentionally lures or entices, or attempts to lure
621
or entice, a child under the age of 12 into a structure,
622
dwelling, or conveyance for other than a lawful purpose commits a
623
felony of the third degree, punishable as provided in s. 775.082,
625
Section 18. Section 794.065, Florida Statutes, is amended
626
to read:
627
794.065 Unlawful place of residence for persons convicted
628
of certain sex offenses.--
629
(1) It is unlawful for any person who has been convicted of
631
or s. 847.0145, regardless of whether adjudication has been
632
withheld, in which the victim of the offense was less than 16
633
years of age, to reside within 1,000 feet of any school, day care
634
center, park, or playground. A person who violates this section
637
degree or higher commits a felony of the third degree, punishable
641
of the second or third degree commits a misdemeanor of the first
643
(2) This section applies to any person convicted of a
645
s. 847.0145 for offenses that occur on or after October 1, 2004.
646
Section 19. Section 914.16, Florida Statutes, is amended to
647
read:
648
914.16 Child abuse and sexual abuse of victims under age 16
649
or persons with mental retardation; limits on interviews.--The
650
chief judge of each judicial circuit, after consultation with the
651
state attorney and the public defender for the judicial circuit,
652
the appropriate chief law enforcement officer, and any other
653
person deemed appropriate by the chief judge, shall provide by
654
order reasonable limits on the number of interviews that a victim
656
847.01355 who is under 16 years of age or a victim of a violation
658
person with mental retardation as defined in s. 393.063 must
659
submit to for law enforcement or discovery purposes. The order
660
shall, to the extent possible, protect the victim from the
661
psychological damage of repeated interrogations while preserving
662
the rights of the public, the victim, and the person charged with
663
the violation.
664
Section 20. Paragraphs (d) and (e) of subsection (3) of
665
section 921.0022, Florida Statutes, are amended to read:
666
921.0022 Criminal Punishment Code; offense severity ranking
667
chart.--
668
(3) OFFENSE SEVERITY RANKING CHART
669
(d) LEVEL 4
670
| FloridaStatute | FelonyDegree | Description |
671
| 316.1935(3)(a) | 2nd | Driving at high speed or with wanton disregard for safety while fleeing or attempting to elude law enforcement officer who is in a patrol vehicle with siren and lights activated. |
672
| 499.0051(1) | 3rd | Failure to maintain or deliver pedigree papers. |
673
| 499.0051(2) | 3rd | Failure to authenticate pedigree papers. |
674
| 499.0051(6) | 2nd | Sale or delivery, or possession with intent to sell, contraband legend drugs. |
675
| 784.07(2)(b) | 3rd | Battery of law enforcement officer, firefighter, intake officer, etc. |
676
| 784.074(1)(c) | 3rd | Battery of sexually violent predators facility staff. |
677
| 784.075 | 3rd | Battery on detention or commitment facility staff. |
678
| 784.078 | 3rd | Battery of facility employee by throwing, tossing, or expelling certain fluids or materials. |
679
| 784.08(2)(c) | 3rd | Battery on a person 65 years of age or older. |
680
| 784.081(3) | 3rd | Battery on specified official or employee. |
681
| 784.082(3) | 3rd | Battery by detained person on visitor or other detainee. |
682
| 784.083(3) | 3rd | Battery on code inspector. |
683
| 784.085 | 3rd | Battery of child by throwing, tossing, projecting, or expelling certain fluids or materials. |
684
| 787.03(1) | 3rd | Interference with custody; wrongly takes minor from appointed guardian. |
685
| 787.04(2) | 3rd | Take, entice, or remove child beyond state limits with criminal intent pending custody proceedings. |
686
| 787.04(3) | 3rd | Carrying child beyond state lines with criminal intent to avoid producing child at custody hearing or delivering to designated person. |
687
| 790.115(1) | 3rd | Exhibiting firearm or weapon within 1,000 feet of a school. |
688
| 790.115(2)(b) | 3rd | Possessing electric weapon or device, destructive device, or other weapon on school property. |
689
| 790.115(2)(c) | 3rd | Possessing firearm on school property. |
690
| 800.04(7)(c)(d) | 3rd | Lewd or lascivious exhibition; offender less than 18 years. |
691
| 810.02(4)(a) | 3rd | Burglary, or attempted burglary, of an unoccupied structure; unarmed; no assault or battery. |
692
| 810.02(4)(b) | 3rd | Burglary, or attempted burglary, of an unoccupied conveyance; unarmed; no assault or battery. |
693
| 810.06 | 3rd | Burglary; possession of tools. |
694
| 810.08(2)(c) | 3rd | Trespass on property, armed with firearm or dangerous weapon. |
695
| 812.014(2)(c)3. | 3rd | Grand theft, 3rd degree $10,000 or more but less than $20,000. |
696
| 812.014(2)(c)4.-10. | 3rd | Grand theft, 3rd degree, a will, firearm, motor vehicle, livestock, etc. |
697
| 812.0195(2) | 3rd | Dealing in stolen property by use of the Internet; property stolen $300 or more. |
698
| 817.563(1) | 3rd | Sell or deliver substance other than controlled substance agreed upon, excluding s. 893.03(5) drugs. |
699
| 817.568(2)(a) | 3rd | Fraudulent use of personal identification information. |
700
| 817.625(2)(a) | 3rd | Fraudulent use of scanning device or reencoder. |
701
| 828.125(1) | 2nd | Kill, maim, or cause great bodily harm or permanent breeding disability to any registered horse or cattle. |
702
| 837.02(1) | 3rd | Perjury in official proceedings. |
703
| 837.021(1) | 3rd | Make contradictory statements in official proceedings. |
704
| 838.022 | 3rd | Official misconduct. |
705
| 839.13(2)(a) | 3rd | Falsifying records of an individual in the care and custody of a state agency. |
706
| 839.13(2)(c) | 3rd | Falsifying records of the Department of Children and Family Services. |
707
| 843.021 | 3rd | Possession of a concealed handcuff key by a person in custody. |
708
| 843.025 | 3rd | Deprive law enforcement, correctional, or correctional probation officer of means of protection or communication. |
709
| 843.15(1)(a) | 3rd | Failure to appear while on bail for felony (bond estreature or bond jumping). |
710
| 847.01355(3) | 3rd | Lewd or lascivious exhibition using computer; offender less than 18 years. |
711
| 874.05(1) | 3rd | Encouraging or recruiting another to join a criminal street gang. |
712
| 893.13(2)(a)1. | 2nd | Purchase of cocaine (or other s. 893.03(1)(a), (b), or (d), (2)(a), (2)(b), or (2)(c)4. drugs). |
713
| 914.14(2) | 3rd | Witnesses accepting bribes. |
714
| 914.22(1) | 3rd | Force, threaten, etc., witness, victim, or informant. |
715
| 914.23(2) | 3rd | Retaliation against a witness, victim, or informant, no bodily injury. |
716
| 918.12 | 3rd | Tampering with jurors. |
717
| 934.215 | 3rd | Use of two-way communications device to facilitate commission of a crime. |
718
719
(e) LEVEL 5
720
| FloridaStatute | FelonyDegree | Description |
721
| 316.027(1)(a) | 3rd | Accidents involving personal injuries, failure to stop; leaving scene. |
722
| 316.1935(4)(a) | 2nd | Aggravated fleeing or eluding. |
723
| 322.34(6) | 3rd | Careless operation of motor vehicle with suspended license, resulting in death or serious bodily injury. |
724
| 327.30(5) | 3rd | Vessel accidents involving personal injury; leaving scene. |
725
| 381.0041(11)(b) | 3rd | Donate blood, plasma, or organs knowing HIV positive. |
726
| 440.10(1)(g) | 2nd | Failure to obtain workers' compensation coverage. |
727
| 440.105(5) | 2nd | Unlawful solicitation for the purpose of making workers' compensation claims. |
728
| 440.381(2) | 2nd | Submission of false, misleading, or incomplete information with the purpose of avoiding or reducing workers' compensation premiums. |
729
| 624.401(4)(b)2. | 2nd | Transacting insurance without a certificate or authority; premium collected $20,000 or more but less than $100,000. |
730
| 626.902(1)(c) | 2nd | Representing an unauthorized insurer; repeat offender. |
731
| 790.01(2) | 3rd | Carrying a concealed firearm. |
732
| 790.162 | 2nd | Threat to throw or discharge destructive device. |
733
| 790.163(1) | 2nd | False report of deadly explosive or weapon of mass destruction. |
734
| 790.221(1) | 2nd | Possession of short-barreled shotgun or machine gun. |
735
| 790.23 | 2nd | Felons in possession of firearms, ammunition, or electronic weapons or devices. |
736
| 800.04(6)(c) | 3rd | Lewd or lascivious conduct; offender less than 18 years. |
737
| 800.04(7)(b)(c) | 2nd | Lewd or lascivious exhibition; offender 18 years or older. |
738
| 806.111(1) | 3rd | Possess, manufacture, or dispense fire bomb with intent to damage any structure or property. |
739
| 812.0145(2)(b) | 2nd | Theft from person 65 years of age or older; $10,000 or more but less than $50,000. |
740
| 812.015(8) | 3rd | Retail theft; property stolen is valued at $300 or more and one or more specified acts. |
741
| 812.019(1) | 2nd | Stolen property; dealing in or trafficking in. |
742
| 812.131(2)(b) | 3rd | Robbery by sudden snatching. |
743
| 812.16(2) | 3rd | Owning, operating, or conducting a chop shop. |
744
| 817.034(4)(a)2. | 2nd | Communications fraud, value $20,000 to $50,000. |
745
| 817.234(11)(b) | 2nd | Insurance fraud; property value $20,000 or more but less than $100,000. |
746
| 817.2341(1),(2)(a)&(3)(a) | 3rd | Filing false financial statements, making false entries of material fact or false statements regarding property values relating to the solvency of an insuring entity. |
747
| 817.568(2)(b) | 2nd | Fraudulent use of personal identification information; value of benefit, services received, payment avoided, or amount of injury or fraud, $5,000 or more or use of personal identification information of 10 or more individuals. |
748
| 817.625(2)(b) | 2nd | Second or subsequent fraudulent use of scanning device or reencoder. |
749
| 825.1025(4) | 3rd | Lewd or lascivious exhibition in the presence of an elderly person or disabled adult. |
750
| 827.071(4) | 2nd | Possess with intent to promote any photographic material, motion picture, etc., which includes sexual conduct by a child. |
751
| 827.071(5) | 3rd | Possess any photographic material, motion picture, etc., which includes sexual conduct by a child. |
752
| 839.13(2)(b) | 2nd | Falsifying records of an individual in the care and custody of a state agency involving great bodily harm or death. |
753
| 843.01 | 3rd | Resist officer with violence to person; resist arrest with violence. |
754
| 847.01355(2) | 2nd | Lewd or lascivious exhibition using computer; offender 18 years or older. |
755
| 847.0137(2)&(3) | 3rd | Transmission of pornography by electronic device or equipment. |
756
| 847.0138(2)&(3) | 3rd | Transmission of material harmful to minors to a minor by electronic device or equipment. |
757
| 874.05(2) | 2nd | Encouraging or recruiting another to join a criminal street gang; second or subsequent offense. |
758
| 893.13(1)(a)1. | 2nd | Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4. drugs). |
759
| 893.13(1)(c)2. | 2nd | Sell, manufacture, or deliver cannabis (or other s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) drugs) within 1,000 feet of a child care facility, school, or state, county, or municipal park or publicly owned recreational facility or community center. |
760
| 893.13(1)(d)1. | 1st | Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4. drugs) within 1,000 feet of university. |
761
| 893.13(1)(e)2. | 2nd | Sell, manufacture, or deliver cannabis or other drug prohibited under s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) within 1,000 feet of property used for religious services or a specified business site. |
762
| 893.13(1)(f)1. | 1st | Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), or (2)(a), (2)(b), or (2)(c)4. drugs) within 1,000 feet of public housing facility. |
763
| 893.13(4)(b) | 2nd | Deliver to minor cannabis (or other s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) drugs). |
764
765
Section 21. Subsections (1) and (3) of section 921.244,
766
Florida Statutes, are amended to read:
767
921.244 Order of no contact; penalties.--
768
(1) At the time of sentencing an offender convicted of a
770
shall order that the offender be prohibited from having any
771
contact with the victim, directly or indirectly, including
772
through a third person, for the duration of the sentence imposed.
773
The court may reconsider the order upon the request of the victim
774
if the request is made at any time after the victim has attained
775
18 years of age. In considering the request, the court shall
776
conduct an evidentiary hearing to determine whether a change of
777
circumstances has occurred which warrants a change in the court
778
order prohibiting contact and whether it is in the best interest
779
of the victim that the court order be modified or rescinded.
780
(3) The punishment imposed under this section shall run
781
consecutive to any former sentence imposed for a conviction for
783
Section 22. Subsection (1) of section 938.10, Florida
784
Statutes, is amended to read:
785
938.10 Additional court cost imposed in cases of certain
786
crimes against minors.--
787
(1) If a person pleads guilty or nolo contendere to, or is
788
found guilty of, regardless of adjudication, any offense against
789
a minor in violation of s. 784.085, chapter 787, chapter 794, s.
791
985.701, the court shall impose a court cost of $101 against the
792
offender in addition to any other cost or penalty required by
793
law.
794
Section 23. Paragraph (a) of subsection (1) of section
795
943.0435, Florida Statutes, is amended to read:
796
943.0435 Sexual offenders required to register with the
797
department; penalty.--
798
(1) As used in this section, the term:
799
(a)1. "Sexual offender" means a person who meets the
800
criteria in sub-subparagraph a., sub-subparagraph b., sub-
801
subparagraph c., or sub-subparagraph d., as follows:
802
a.(I) Has been convicted of committing, or attempting,
803
soliciting, or conspiring to commit, any of the criminal offenses
804
proscribed in the following statutes in this state or similar
806
787.025(2)(c), where the victim is a minor and the defendant is
807
not the victim's parent or guardian; s. 794.011, excluding s.
811
or s. 985.701(1); or any similar offense committed in this state
812
which has been redesignated from a former statute number to one
813
of those listed in this sub-sub-subparagraph; and
814
(II) Has been released on or after October 1, 1997, from
815
the sanction imposed for any conviction of an offense described
816
in sub-sub-subparagraph (I). For purposes of sub-sub-subparagraph
817
(I), a sanction imposed in this state or in any other
818
jurisdiction includes, but is not limited to, a fine, probation,
819
community control, parole, conditional release, control release,
820
or incarceration in a state prison, federal prison, private
821
correctional facility, or local detention facility;
822
b. Establishes or maintains a residence in this state and
823
who has not been designated as a sexual predator by a court of
824
this state but who has been designated as a sexual predator, as a
825
sexually violent predator, or by another sexual offender
826
designation in another state or jurisdiction and was, as a result
827
of such designation, subjected to registration or community or
828
public notification, or both, or would be if the person were a
829
resident of that state or jurisdiction, without regard to whether
830
the person otherwise meets the criteria for registration as a
831
sexual offender;
832
c. Establishes or maintains a residence in this state who
833
is in the custody or control of, or under the supervision of, any
834
other state or jurisdiction as a result of a conviction for
835
committing, or attempting, soliciting, or conspiring to commit,
836
any of the criminal offenses proscribed in the following statutes
838
or s. 787.025(2)(c), where the victim is a minor and the
839
defendant is not the victim's parent or guardian; s. 794.011,
844
in this state which has been redesignated from a former statute
845
number to one of those listed in this sub-subparagraph; or
846
d. On or after July 1, 2007, has been adjudicated
847
delinquent for committing, or attempting, soliciting, or
848
conspiring to commit, any of the criminal offenses proscribed in
849
the following statutes in this state or similar offenses in
850
another jurisdiction when the juvenile was 14 years of age or
851
older at the time of the offense:
853
(II) Section 800.04(4)(b) where the victim is under 12
854
years of age or where the court finds sexual activity by the use
855
of force or coercion;
856
(III) Section 800.04(5)(c)1. where the court finds
857
molestation involving unclothed genitals; or
858
(IV) Section 800.04(5)(d) where the court finds the use of
859
force or coercion and unclothed genitals.
860
2. For all qualifying offenses listed in sub-subparagraph
861
(1)(a)1.d., the court shall make a written finding of the age of
862
the offender at the time of the offense.
863
864
For each violation of a qualifying offense listed in this
865
subsection, the court shall make a written finding of the age of
866
the victim at the time of the offense. For a violation of s.
867
800.04(4), the court shall additionally make a written finding
868
indicating that the offense did or did not involve sexual
869
activity and indicating that the offense did or did not involve
870
force or coercion. For a violation of s. 800.04(5), the court
871
shall additionally make a written finding that the offense did or
872
did not involve unclothed genitals or genital area and that the
873
offense did or did not involve the use of force or coercion.
874
Section 24. Subsections (1), (2), and (4) of section
875
943.04354, Florida Statutes, are amended to read:
876
943.04354 Removal of the requirement to register as a
877
sexual offender or sexual predator in special circumstances.--
878
(1) For purposes of this section, a person shall be
879
considered for removal of the requirement to register as a sexual
880
offender or sexual predator only if the person:
881
(a) Was or will be convicted or adjudicated delinquent of a
884
847.01355 for which adjudication of guilt was or will be
885
withheld, and the person does not have any other conviction,
886
adjudication of delinquency, or withhold of adjudication of guilt
888
(b) Is required to register as a sexual offender or sexual
889
predator solely on the basis of this violation; and
890
(c) Is not more than 4 years older than the victim of this
891
violation who was 14 years of age or older but not more than 17
892
years of age at the time the person committed this violation.
893
(2) If a person meets the criteria in subsection (1) and
895
committed on or after July 1, 2007, the person may move the court
896
that will sentence or dispose of this violation to remove the
897
requirement that the person register as a sexual offender or
898
sexual predator. The person must allege in the motion that he or
899
she meets the criteria in subsection (1) and that removal of the
900
registration requirement will not conflict with federal law. The
901
state attorney must be given notice of the motion at least 21
902
days before the date of sentencing or disposition of this
903
violation and may present evidence in opposition to the requested
904
relief or may otherwise demonstrate why the motion should be
905
denied. At sentencing or disposition of this violation, the court
906
shall rule on this motion and, if the court determines the person
907
meets the criteria in subsection (1) and the removal of the
908
registration requirement will not conflict with federal law, it
909
may grant the motion and order the removal of the registration
910
requirement. If the court denies the motion, the person is not
911
authorized under this section to petition for removal of the
912
registration requirement.
913
(4) If a person provides to the Department of Law
914
Enforcement a certified copy of the court's order removing the
915
requirement that the person register as a sexual offender or
917
s. 847.01355, the registration requirement will not apply to the
918
person and the department shall remove all information about the
919
person from the public registry of sexual offenders and sexual
920
predators maintained by the department. However, the removal of
921
this information from the public registry does not mean that the
922
public is denied access to information about the person's
923
criminal history or record that is otherwise available as a
924
public record.
925
Section 25. Section 943.0585, Florida Statutes, is amended
926
to read:
927
943.0585 Court-ordered expunction of criminal history
928
records.--The courts of this state have jurisdiction over their
929
own procedures, including the maintenance, expunction, and
930
correction of judicial records containing criminal history
931
information to the extent such procedures are not inconsistent
932
with the conditions, responsibilities, and duties established by
933
this section. Any court of competent jurisdiction may order a
934
criminal justice agency to expunge the criminal history record of
935
a minor or an adult who complies with the requirements of this
936
section. The court shall not order a criminal justice agency to
937
expunge a criminal history record until the person seeking to
938
expunge a criminal history record has applied for and received a
939
certificate of eligibility for expunction pursuant to subsection
940
(2). A criminal history record that relates to a violation of s.
945
any violation specified as a predicate offense for registration
946
as a sexual predator pursuant to s. 775.21, without regard to
947
whether that offense alone is sufficient to require such
948
registration, or for registration as a sexual offender pursuant
949
to s. 943.0435, may not be expunged, without regard to whether
950
adjudication was withheld, if the defendant was found guilty of
951
or pled guilty or nolo contendere to the offense, or if the
952
defendant, as a minor, was found to have committed, or pled
953
guilty or nolo contendere to committing, the offense as a
954
delinquent act. The court may only order expunction of a criminal
955
history record pertaining to one arrest or one incident of
956
alleged criminal activity, except as provided in this section.
957
The court may, at its sole discretion, order the expunction of a
958
criminal history record pertaining to more than one arrest if the
959
additional arrests directly relate to the original arrest. If the
960
court intends to order the expunction of records pertaining to
961
such additional arrests, such intent must be specified in the
962
order. A criminal justice agency may not expunge any record
963
pertaining to such additional arrests if the order to expunge
964
does not articulate the intention of the court to expunge a
965
record pertaining to more than one arrest. This section does not
966
prevent the court from ordering the expunction of only a portion
967
of a criminal history record pertaining to one arrest or one
968
incident of alleged criminal activity. Notwithstanding any law to
969
the contrary, a criminal justice agency may comply with laws,
970
court orders, and official requests of other jurisdictions
971
relating to expunction, correction, or confidential handling of
972
criminal history records or information derived therefrom. This
973
section does not confer any right to the expunction of any
974
criminal history record, and any request for expunction of a
975
criminal history record may be denied at the sole discretion of
976
the court.
977
(1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.--Each
978
petition to a court to expunge a criminal history record is
979
complete only when accompanied by:
980
(a) A valid certificate of eligibility for expunction
981
issued by the department pursuant to subsection (2).
982
(b) The petitioner's sworn statement attesting that the
983
petitioner:
984
1. Has never, prior to the date on which the petition is
985
filed, been adjudicated guilty of a criminal offense or
986
comparable ordinance violation, or been adjudicated delinquent
987
for committing any felony or a misdemeanor specified in s.
988
943.051(3)(b).
989
2. Has not been adjudicated guilty of, or adjudicated
990
delinquent for committing, any of the acts stemming from the
991
arrest or alleged criminal activity to which the petition
992
pertains.
993
3. Has never secured a prior sealing or expunction of a
994
criminal history record under this section, former s. 893.14,
995
former s. 901.33, or former s. 943.058, or from any jurisdiction
996
outside the state, unless expunction is sought of a criminal
997
history record previously sealed for 10 years pursuant to
998
paragraph (2)(h) and the record is otherwise eligible for
999
expunction.
1000
4. Is eligible for such an expunction to the best of his or
1001
her knowledge or belief and does not have any other petition to
1002
expunge or any petition to seal pending before any court.
1003
1004
Any person who knowingly provides false information on such sworn
1005
statement to the court commits a felony of the third degree,
1007
(2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.--Prior to
1008
petitioning the court to expunge a criminal history record, a
1009
person seeking to expunge a criminal history record shall apply
1010
to the department for a certificate of eligibility for
1011
expunction. The department shall, by rule adopted pursuant to
1012
chapter 120, establish procedures pertaining to the application
1013
for and issuance of certificates of eligibility for expunction. A
1014
certificate of eligibility for expunction is valid for 12 months
1015
after the date stamped on the certificate when issued by the
1016
department. After that time, the petitioner must reapply to the
1017
department for a new certificate of eligibility. Eligibility for
1018
a renewed certification of eligibility must be based on the
1019
status of the applicant and the law in effect at the time of the
1020
renewal application. The department shall issue a certificate of
1021
eligibility for expunction to a person who is the subject of a
1022
criminal history record if that person:
1023
(a) Has obtained, and submitted to the department, a
1024
written, certified statement from the appropriate state attorney
1025
or statewide prosecutor which indicates:
1026
1. That an indictment, information, or other charging
1027
document was not filed or issued in the case.
1028
2. That an indictment, information, or other charging
1029
document, if filed or issued in the case, was dismissed or nolle
1030
prosequi by the state attorney or statewide prosecutor, or was
1031
dismissed by a court of competent jurisdiction, and that none of
1032
the charges related to the arrest or alleged criminal activity to
1033
which the petition to expunge pertains resulted in a trial,
1034
without regard to whether the outcome of the trial was other than
1035
an adjudication of guilt.
1036
3. That the criminal history record does not relate to a
1041
907.041, or any violation specified as a predicate offense for
1042
registration as a sexual predator pursuant to s. 775.21, without
1043
regard to whether that offense alone is sufficient to require
1044
such registration, or for registration as a sexual offender
1045
pursuant to s. 943.0435, where the defendant was found guilty of,
1046
or pled guilty or nolo contendere to any such offense, or that
1047
the defendant, as a minor, was found to have committed, or pled
1048
guilty or nolo contendere to committing, such an offense as a
1049
delinquent act, without regard to whether adjudication was
1050
withheld.
1051
(b) Remits a $75 processing fee to the department for
1052
placement in the Department of Law Enforcement Operating Trust
1053
Fund, unless such fee is waived by the executive director.
1054
(c) Has submitted to the department a certified copy of the
1055
disposition of the charge to which the petition to expunge
1056
pertains.
1057
(d) Has never, prior to the date on which the application
1058
for a certificate of eligibility is filed, been adjudicated
1059
guilty of a criminal offense or comparable ordinance violation,
1060
or been adjudicated delinquent for committing any felony or a
1061
misdemeanor specified in s. 943.051(3)(b).
1062
(e) Has not been adjudicated guilty of, or adjudicated
1063
delinquent for committing, any of the acts stemming from the
1064
arrest or alleged criminal activity to which the petition to
1065
expunge pertains.
1066
(f) Has never secured a prior sealing or expunction of a
1067
criminal history record under this section, former s. 893.14,
1068
former s. 901.33, or former s. 943.058, unless expunction is
1069
sought of a criminal history record previously sealed for 10
1070
years pursuant to paragraph (h) and the record is otherwise
1071
eligible for expunction.
1072
(g) Is no longer under court supervision applicable to the
1073
disposition of the arrest or alleged criminal activity to which
1074
the petition to expunge pertains.
1075
(h) Has previously obtained a court order sealing the
1076
record under this section, former s. 893.14, former s. 901.33, or
1077
former s. 943.058 for a minimum of 10 years because adjudication
1078
was withheld or because all charges related to the arrest or
1079
alleged criminal activity to which the petition to expunge
1080
pertains were not dismissed prior to trial, without regard to
1081
whether the outcome of the trial was other than an adjudication
1082
of guilt. The requirement for the record to have previously been
1083
sealed for a minimum of 10 years does not apply when a plea was
1084
not entered or all charges related to the arrest or alleged
1085
criminal activity to which the petition to expunge pertains were
1086
dismissed prior to trial.
1087
(3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.--
1088
(a) In judicial proceedings under this section, a copy of
1089
the completed petition to expunge shall be served upon the
1090
appropriate state attorney or the statewide prosecutor and upon
1091
the arresting agency; however, it is not necessary to make any
1092
agency other than the state a party. The appropriate state
1093
attorney or the statewide prosecutor and the arresting agency may
1094
respond to the court regarding the completed petition to expunge.
1095
(b) If relief is granted by the court, the clerk of the
1096
court shall certify copies of the order to the appropriate state
1097
attorney or the statewide prosecutor and the arresting agency.
1098
The arresting agency is responsible for forwarding the order to
1099
any other agency to which the arresting agency disseminated the
1100
criminal history record information to which the order pertains.
1101
The department shall forward the order to expunge to the Federal
1102
Bureau of Investigation. The clerk of the court shall certify a
1103
copy of the order to any other agency which the records of the
1104
court reflect has received the criminal history record from the
1105
court.
1106
(c) For an order to expunge entered by a court prior to
1107
July 1, 1992, the department shall notify the appropriate state
1108
attorney or statewide prosecutor of an order to expunge which is
1109
contrary to law because the person who is the subject of the
1110
record has previously been convicted of a crime or comparable
1111
ordinance violation or has had a prior criminal history record
1112
sealed or expunged. Upon receipt of such notice, the appropriate
1113
state attorney or statewide prosecutor shall take action, within
1114
60 days, to correct the record and petition the court to void the
1115
order to expunge. The department shall seal the record until such
1116
time as the order is voided by the court.
1117
(d) On or after July 1, 1992, the department or any other
1118
criminal justice agency is not required to act on an order to
1119
expunge entered by a court when such order does not comply with
1120
the requirements of this section. Upon receipt of such an order,
1121
the department must notify the issuing court, the appropriate
1122
state attorney or statewide prosecutor, the petitioner or the
1123
petitioner's attorney, and the arresting agency of the reason for
1124
noncompliance. The appropriate state attorney or statewide
1125
prosecutor shall take action within 60 days to correct the record
1126
and petition the court to void the order. No cause of action,
1127
including contempt of court, shall arise against any criminal
1128
justice agency for failure to comply with an order to expunge
1129
when the petitioner for such order failed to obtain the
1130
certificate of eligibility as required by this section or such
1131
order does not otherwise comply with the requirements of this
1132
section.
1133
(4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any
1134
criminal history record of a minor or an adult which is ordered
1135
expunged by a court of competent jurisdiction pursuant to this
1136
section must be physically destroyed or obliterated by any
1137
criminal justice agency having custody of such record; except
1138
that any criminal history record in the custody of the department
1139
must be retained in all cases. A criminal history record ordered
1140
expunged that is retained by the department is confidential and
1141
exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I
1142
of the State Constitution and not available to any person or
1143
entity except upon order of a court of competent jurisdiction. A
1144
criminal justice agency may retain a notation indicating
1145
compliance with an order to expunge.
1146
(a) The person who is the subject of a criminal history
1147
record that is expunged under this section or under other
1148
provisions of law, including former s. 893.14, former s. 901.33,
1149
and former s. 943.058, may lawfully deny or fail to acknowledge
1150
the arrests covered by the expunged record, except when the
1151
subject of the record:
1152
1. Is a candidate for employment with a criminal justice
1153
agency;
1154
2. Is a defendant in a criminal prosecution;
1155
3. Concurrently or subsequently petitions for relief under
1156
this section or s. 943.059;
1157
4. Is a candidate for admission to The Florida Bar;
1158
5. Is seeking to be employed or licensed by or to contract
1159
with the Department of Children and Family Services or the
1160
Department of Juvenile Justice or to be employed or used by such
1161
contractor or licensee in a sensitive position having direct
1162
contact with children, the developmentally disabled, the aged, or
1166
400, or chapter 429;
1167
6. Is seeking to be employed or licensed by the Department
1168
of Education, any district school board, any university
1169
laboratory school, any charter school, any private or parochial
1170
school, or any local governmental entity that licenses child care
1171
facilities; or
1172
7. Is seeking authorization from a Florida seaport
1173
identified in s. 311.09 for employment within or access to one or
1175
(b) Subject to the exceptions in paragraph (a), a person
1176
who has been granted an expunction under this section, former s.
1177
893.14, former s. 901.33, or former s. 943.058 may not be held
1178
under any provision of law of this state to commit perjury or to
1179
be otherwise liable for giving a false statement by reason of
1180
such person's failure to recite or acknowledge an expunged
1181
criminal history record.
1182
(c) Information relating to the existence of an expunged
1183
criminal history record which is provided in accordance with
1184
paragraph (a) is confidential and exempt from the provisions of
1185
s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
1186
except that the department shall disclose the existence of a
1187
criminal history record ordered expunged to the entities set
1188
forth in subparagraphs (a)1., 4., 5., 6., and 7. for their
1189
respective licensing, access authorization, and employment
1190
purposes, and to criminal justice agencies for their respective
1191
criminal justice purposes. It is unlawful for any employee of an
1192
entity set forth in subparagraph (a)1., subparagraph (a)4.,
1193
subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to
1194
disclose information relating to the existence of an expunged
1195
criminal history record of a person seeking employment, access
1196
authorization, or licensure with such entity or contractor,
1197
except to the person to whom the criminal history record relates
1198
or to persons having direct responsibility for employment, access
1199
authorization, or licensure decisions. Any person who violates
1200
this paragraph commits a misdemeanor of the first degree,
1202
(5) STATUTORY REFERENCES.--Any reference to any other
1203
chapter, section, or subdivision of the Florida Statutes in this
1204
section constitutes a general reference under the doctrine of
1205
incorporation by reference.
1206
Section 26. Section 943.059, Florida Statutes, is amended
1207
to read:
1208
943.059 Court-ordered sealing of criminal history
1209
records.--The courts of this state shall continue to have
1210
jurisdiction over their own procedures, including the
1211
maintenance, sealing, and correction of judicial records
1212
containing criminal history information to the extent such
1213
procedures are not inconsistent with the conditions,
1214
responsibilities, and duties established by this section. Any
1215
court of competent jurisdiction may order a criminal justice
1216
agency to seal the criminal history record of a minor or an adult
1217
who complies with the requirements of this section. The court
1218
shall not order a criminal justice agency to seal a criminal
1219
history record until the person seeking to seal a criminal
1220
history record has applied for and received a certificate of
1221
eligibility for sealing pursuant to subsection (2). A criminal
1222
history record that relates to a violation of s. 393.135, s.
1227
specified as a predicate offense for registration as a sexual
1228
predator pursuant to s. 775.21, without regard to whether that
1229
offense alone is sufficient to require such registration, or for
1230
registration as a sexual offender pursuant to s. 943.0435, may
1231
not be sealed, without regard to whether adjudication was
1232
withheld, if the defendant was found guilty of or pled guilty or
1233
nolo contendere to the offense, or if the defendant, as a minor,
1234
was found to have committed or pled guilty or nolo contendere to
1235
committing the offense as a delinquent act. The court may only
1236
order sealing of a criminal history record pertaining to one
1237
arrest or one incident of alleged criminal activity, except as
1238
provided in this section. The court may, at its sole discretion,
1239
order the sealing of a criminal history record pertaining to more
1240
than one arrest if the additional arrests directly relate to the
1241
original arrest. If the court intends to order the sealing of
1242
records pertaining to such additional arrests, such intent must
1243
be specified in the order. A criminal justice agency may not seal
1244
any record pertaining to such additional arrests if the order to
1245
seal does not articulate the intention of the court to seal
1246
records pertaining to more than one arrest. This section does not
1247
prevent the court from ordering the sealing of only a portion of
1248
a criminal history record pertaining to one arrest or one
1249
incident of alleged criminal activity. Notwithstanding any law to
1250
the contrary, a criminal justice agency may comply with laws,
1251
court orders, and official requests of other jurisdictions
1252
relating to sealing, correction, or confidential handling of
1253
criminal history records or information derived therefrom. This
1254
section does not confer any right to the sealing of any criminal
1255
history record, and any request for sealing a criminal history
1256
record may be denied at the sole discretion of the court.
1257
(1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each
1258
petition to a court to seal a criminal history record is complete
1259
only when accompanied by:
1260
(a) A valid certificate of eligibility for sealing issued
1261
by the department pursuant to subsection (2).
1262
(b) The petitioner's sworn statement attesting that the
1263
petitioner:
1264
1. Has never, prior to the date on which the petition is
1265
filed, been adjudicated guilty of a criminal offense or
1266
comparable ordinance violation, or been adjudicated delinquent
1267
for committing any felony or a misdemeanor specified in s.
1268
943.051(3)(b).
1269
2. Has not been adjudicated guilty of or adjudicated
1270
delinquent for committing any of the acts stemming from the
1271
arrest or alleged criminal activity to which the petition to seal
1272
pertains.
1273
3. Has never secured a prior sealing or expunction of a
1274
criminal history record under this section, former s. 893.14,
1275
former s. 901.33, former s. 943.058, or from any jurisdiction
1276
outside the state.
1277
4. Is eligible for such a sealing to the best of his or her
1278
knowledge or belief and does not have any other petition to seal
1279
or any petition to expunge pending before any court.
1280
1281
Any person who knowingly provides false information on such sworn
1282
statement to the court commits a felony of the third degree,
1284
(2) CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to
1285
petitioning the court to seal a criminal history record, a person
1286
seeking to seal a criminal history record shall apply to the
1287
department for a certificate of eligibility for sealing. The
1288
department shall, by rule adopted pursuant to chapter 120,
1289
establish procedures pertaining to the application for and
1290
issuance of certificates of eligibility for sealing. A
1291
certificate of eligibility for sealing is valid for 12 months
1292
after the date stamped on the certificate when issued by the
1293
department. After that time, the petitioner must reapply to the
1294
department for a new certificate of eligibility. Eligibility for
1295
a renewed certification of eligibility must be based on the
1296
status of the applicant and the law in effect at the time of the
1297
renewal application. The department shall issue a certificate of
1298
eligibility for sealing to a person who is the subject of a
1299
criminal history record provided that such person:
1300
(a) Has submitted to the department a certified copy of the
1301
disposition of the charge to which the petition to seal pertains.
1302
(b) Remits a $75 processing fee to the department for
1303
placement in the Department of Law Enforcement Operating Trust
1304
Fund, unless such fee is waived by the executive director.
1305
(c) Has never, prior to the date on which the application
1306
for a certificate of eligibility is filed, been adjudicated
1307
guilty of a criminal offense or comparable ordinance violation,
1308
or been adjudicated delinquent for committing any felony or a
1309
misdemeanor specified in s. 943.051(3)(b).
1310
(d) Has not been adjudicated guilty of or adjudicated
1311
delinquent for committing any of the acts stemming from the
1312
arrest or alleged criminal activity to which the petition to seal
1313
pertains.
1314
(e) Has never secured a prior sealing or expunction of a
1315
criminal history record under this section, former s. 893.14,
1316
former s. 901.33, or former s. 943.058.
1317
(f) Is no longer under court supervision applicable to the
1318
disposition of the arrest or alleged criminal activity to which
1319
the petition to seal pertains.
1320
(3) PROCESSING OF A PETITION OR ORDER TO SEAL.--
1321
(a) In judicial proceedings under this section, a copy of
1322
the completed petition to seal shall be served upon the
1323
appropriate state attorney or the statewide prosecutor and upon
1324
the arresting agency; however, it is not necessary to make any
1325
agency other than the state a party. The appropriate state
1326
attorney or the statewide prosecutor and the arresting agency may
1327
respond to the court regarding the completed petition to seal.
1328
(b) If relief is granted by the court, the clerk of the
1329
court shall certify copies of the order to the appropriate state
1330
attorney or the statewide prosecutor and to the arresting agency.
1331
The arresting agency is responsible for forwarding the order to
1332
any other agency to which the arresting agency disseminated the
1333
criminal history record information to which the order pertains.
1334
The department shall forward the order to seal to the Federal
1335
Bureau of Investigation. The clerk of the court shall certify a
1336
copy of the order to any other agency which the records of the
1337
court reflect has received the criminal history record from the
1338
court.
1339
(c) For an order to seal entered by a court prior to July
1340
1, 1992, the department shall notify the appropriate state
1341
attorney or statewide prosecutor of any order to seal which is
1342
contrary to law because the person who is the subject of the
1343
record has previously been convicted of a crime or comparable
1344
ordinance violation or has had a prior criminal history record
1345
sealed or expunged. Upon receipt of such notice, the appropriate
1346
state attorney or statewide prosecutor shall take action, within
1347
60 days, to correct the record and petition the court to void the
1348
order to seal. The department shall seal the record until such
1349
time as the order is voided by the court.
1350
(d) On or after July 1, 1992, the department or any other
1351
criminal justice agency is not required to act on an order to
1352
seal entered by a court when such order does not comply with the
1353
requirements of this section. Upon receipt of such an order, the
1354
department must notify the issuing court, the appropriate state
1355
attorney or statewide prosecutor, the petitioner or the
1356
petitioner's attorney, and the arresting agency of the reason for
1357
noncompliance. The appropriate state attorney or statewide
1358
prosecutor shall take action within 60 days to correct the record
1359
and petition the court to void the order. No cause of action,
1360
including contempt of court, shall arise against any criminal
1361
justice agency for failure to comply with an order to seal when
1362
the petitioner for such order failed to obtain the certificate of
1363
eligibility as required by this section or when such order does
1364
not comply with the requirements of this section.
1365
(e) An order sealing a criminal history record pursuant to
1366
this section does not require that such record be surrendered to
1367
the court, and such record shall continue to be maintained by the
1368
department and other criminal justice agencies.
1369
(4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A criminal
1370
history record of a minor or an adult which is ordered sealed by
1371
a court of competent jurisdiction pursuant to this section is
1372
confidential and exempt from the provisions of s. 119.07(1) and
1373
s. 24(a), Art. I of the State Constitution and is available only
1374
to the person who is the subject of the record, to the subject's
1375
attorney, to criminal justice agencies for their respective
1376
criminal justice purposes, which include conducting a criminal
1377
history background check for approval of firearms purchases or
1378
transfers as authorized by state or federal law, or to those
1379
entities set forth in subparagraphs (a)1., 4., 5., 6., and 8. for
1380
their respective licensing, access authorization, and employment
1381
purposes.
1382
(a) The subject of a criminal history record sealed under
1383
this section or under other provisions of law, including former
1384
s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
1385
deny or fail to acknowledge the arrests covered by the sealed
1386
record, except when the subject of the record:
1387
1. Is a candidate for employment with a criminal justice
1388
agency;
1389
2. Is a defendant in a criminal prosecution;
1390
3. Concurrently or subsequently petitions for relief under
1391
this section or s. 943.0585;
1392
4. Is a candidate for admission to The Florida Bar;
1393
5. Is seeking to be employed or licensed by or to contract
1394
with the Department of Children and Family Services or the
1395
Department of Juvenile Justice or to be employed or used by such
1396
contractor or licensee in a sensitive position having direct
1397
contact with children, the developmentally disabled, the aged, or
1401
985.644, chapter 400, or chapter 429;
1402
6. Is seeking to be employed or licensed by the Department
1403
of Education, any district school board, any university
1404
laboratory school, any charter school, any private or parochial
1405
school, or any local governmental entity that licenses child care
1406
facilities;
1407
7. Is attempting to purchase a firearm from a licensed
1408
importer, licensed manufacturer, or licensed dealer and is
1409
subject to a criminal history background check under state or
1410
federal law; or
1411
8. Is seeking authorization from a Florida seaport
1412
identified in s. 311.09 for employment within or access to one or
1414
(b) Subject to the exceptions in paragraph (a), a person
1415
who has been granted a sealing under this section, former s.
1416
893.14, former s. 901.33, or former s. 943.058 may not be held
1417
under any provision of law of this state to commit perjury or to
1418
be otherwise liable for giving a false statement by reason of
1419
such person's failure to recite or acknowledge a sealed criminal
1420
history record.
1421
(c) Information relating to the existence of a sealed
1422
criminal record provided in accordance with the provisions of
1423
paragraph (a) is confidential and exempt from the provisions of
1424
s. 119.07(1) and s. 24(a), Art. I of the State Constitution,
1425
except that the department shall disclose the sealed criminal
1426
history record to the entities set forth in subparagraphs (a)1.,
1427
4., 5., 6., and 8. for their respective licensing, access
1428
authorization, and employment purposes. It is unlawful for any
1429
employee of an entity set forth in subparagraph (a)1.,
1430
subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or
1431
subparagraph (a)8. to disclose information relating to the
1432
existence of a sealed criminal history record of a person seeking
1433
employment, access authorization, or licensure with such entity
1434
or contractor, except to the person to whom the criminal history
1435
record relates or to persons having direct responsibility for
1436
employment, access authorization, or licensure decisions. Any
1437
person who violates the provisions of this paragraph commits a
1438
misdemeanor of the first degree, punishable as provided in s.
1440
(5) STATUTORY REFERENCES.--Any reference to any other
1441
chapter, section, or subdivision of the Florida Statutes in this
1442
section constitutes a general reference under the doctrine of
1443
incorporation by reference.
1444
Section 27. Paragraph (b) of subsection (1) of section
1445
944.606, Florida Statutes, is amended to read:
1446
944.606 Sexual offenders; notification upon release.--
1447
(1) As used in this section:
1448
(b) "Sexual offender" means a person who has been convicted
1449
of committing, or attempting, soliciting, or conspiring to
1450
commit, any of the criminal offenses proscribed in the following
1451
statutes in this state or similar offenses in another
1453
the victim is a minor and the defendant is not the victim's
1458
985.701(1); or any similar offense committed in this state which
1459
has been redesignated from a former statute number to one of
1460
those listed in this subsection, when the department has received
1461
verified information regarding such conviction; an offender's
1462
computerized criminal history record is not, in and of itself,
1463
verified information.
1464
Section 28. Paragraph (a) of subsection (1) of section
1465
944.607, Florida Statutes, is amended to read:
1466
944.607 Notification to Department of Law Enforcement of
1467
information on sexual offenders.--
1468
(1) As used in this section, the term:
1469
(a) "Sexual offender" means a person who is in the custody
1470
or control of, or under the supervision of, the department or is
1471
in the custody of a private correctional facility:
1472
1. On or after October 1, 1997, as a result of a conviction
1473
for committing, or attempting, soliciting, or conspiring to
1474
commit, any of the criminal offenses proscribed in the following
1475
statutes in this state or similar offenses in another
1477
the victim is a minor and the defendant is not the victim's
1482
985.701(1); or any similar offense committed in this state which
1483
has been redesignated from a former statute number to one of
1484
those listed in this paragraph; or
1485
2. Who establishes or maintains a residence in this state
1486
and who has not been designated as a sexual predator by a court
1487
of this state but who has been designated as a sexual predator,
1488
as a sexually violent predator, or by another sexual offender
1489
designation in another state or jurisdiction and was, as a result
1490
of such designation, subjected to registration or community or
1491
public notification, or both, or would be if the person were a
1492
resident of that state or jurisdiction, without regard as to
1493
whether the person otherwise meets the criteria for registration
1494
as a sexual offender.
1495
Section 29. Subsection (7) of section 947.1405, Florida
1496
Statutes, is amended to read:
1497
947.1405 Conditional release program.--
1498
(7)(a) Any inmate who is convicted of a crime committed on
1499
or after October 1, 1995, or who has been previously convicted of
1500
a crime committed on or after October 1, 1995, in violation of
1502
and is subject to conditional release supervision, shall have, in
1503
addition to any other conditions imposed, the following special
1504
conditions imposed by the commission:
1505
1. A mandatory curfew from 10 p.m. to 6 a.m. The commission
1506
may designate another 8-hour period if the offender's employment
1507
precludes the above specified time, and such alternative is
1508
recommended by the Department of Corrections. If the commission
1509
determines that imposing a curfew would endanger the victim, the
1510
commission may consider alternative sanctions.
1511
2. If the victim was under the age of 18, a prohibition on
1512
living within 1,000 feet of a school, day care center, park,
1513
playground, designated public school bus stop, or other place
1514
where children regularly congregate. A releasee who is subject to
1515
this subparagraph may not relocate to a residence that is within
1516
1,000 feet of a public school bus stop. Beginning October 1,
1517
2004, the commission or the department may not approve a
1518
residence that is located within 1,000 feet of a school, day care
1519
center, park, playground, designated school bus stop, or other
1520
place where children regularly congregate for any releasee who is
1521
subject to this subparagraph. On October 1, 2004, the department
1522
shall notify each affected school district of the location of the
1523
residence of a releasee 30 days prior to release and thereafter,
1524
if the releasee relocates to a new residence, shall notify any
1525
affected school district of the residence of the releasee within
1526
30 days after relocation. If, on October 1, 2004, any public
1527
school bus stop is located within 1,000 feet of the existing
1528
residence of such releasee, the district school board shall
1529
relocate that school bus stop. Beginning October 1, 2004, a
1530
district school board may not establish or relocate a public
1531
school bus stop within 1,000 feet of the residence of a releasee
1532
who is subject to this subparagraph. The failure of the district
1533
school board to comply with this subparagraph shall not result in
1534
a violation of conditional release supervision.
1535
3. Active participation in and successful completion of a
1536
sex offender treatment program with qualified practitioners
1537
specifically trained to treat sex offenders, at the releasee's
1538
own expense. If a qualified practitioner is not available within
1539
a 50-mile radius of the releasee's residence, the offender shall
1540
participate in other appropriate therapy.
1541
4. A prohibition on any contact with the victim, directly
1542
or indirectly, including through a third person, unless approved
1543
by the victim, the offender's therapist, and the sentencing
1544
court.
1545
5. If the victim was under the age of 18, a prohibition
1546
against contact with children under the age of 18 without review
1547
and approval by the commission. The commission may approve
1548
supervised contact with a child under the age of 18 if the
1549
approval is based upon a recommendation for contact issued by a
1550
qualified practitioner who is basing the recommendation on a risk
1551
assessment. Further, the sex offender must be currently enrolled
1552
in or have successfully completed a sex offender therapy program.
1553
The commission may not grant supervised contact with a child if
1554
the contact is not recommended by a qualified practitioner and
1555
may deny supervised contact with a child at any time. When
1556
considering whether to approve supervised contact with a child,
1557
the commission must review and consider the following:
1558
a. A risk assessment completed by a qualified practitioner.
1559
The qualified practitioner must prepare a written report that
1560
must include the findings of the assessment and address each of
1561
the following components:
1562
(I) The sex offender's current legal status;
1563
(II) The sex offender's history of adult charges with
1564
apparent sexual motivation;
1565
(III) The sex offender's history of adult charges without
1566
apparent sexual motivation;
1567
(IV) The sex offender's history of juvenile charges,
1568
whenever available;
1569
(V) The sex offender's offender treatment history,
1570
including a consultation from the sex offender's treating, or
1571
most recent treating, therapist;
1572
(VI) The sex offender's current mental status;
1573
(VII) The sex offender's mental health and substance abuse
1574
history as provided by the Department of Corrections;
1575
(VIII) The sex offender's personal, social, educational,
1576
and work history;
1577
(IX) The results of current psychological testing of the
1578
sex offender if determined necessary by the qualified
1579
practitioner;
1580
(X) A description of the proposed contact, including the
1581
location, frequency, duration, and supervisory arrangement;
1582
(XI) The child's preference and relative comfort level with
1583
the proposed contact, when age-appropriate;
1584
(XII) The parent's or legal guardian's preference regarding
1585
the proposed contact; and
1586
(XIII) The qualified practitioner's opinion, along with the
1587
basis for that opinion, as to whether the proposed contact would
1588
likely pose significant risk of emotional or physical harm to the
1589
child.
1590
1591
The written report of the assessment must be given to the
1592
commission.
1593
b. A recommendation made as a part of the risk-assessment
1594
report as to whether supervised contact with the child should be
1595
approved;
1596
c. A written consent signed by the child's parent or legal
1597
guardian, if the parent or legal guardian is not the sex
1598
offender, agreeing to the sex offender having supervised contact
1599
with the child after receiving full disclosure of the sex
1600
offender's present legal status, past criminal history, and the
1601
results of the risk assessment. The commission may not approve
1602
contact with the child if the parent or legal guardian refuses to
1603
give written consent for supervised contact;
1604
d. A safety plan prepared by the qualified practitioner,
1605
who provides treatment to the offender, in collaboration with the
1606
sex offender, the child's parent or legal guardian, and the
1607
child, when age appropriate, which details the acceptable
1608
conditions of contact between the sex offender and the child. The
1609
safety plan must be reviewed and approved by the Department of
1610
Corrections before being submitted to the commission; and
1611
e. Evidence that the child's parent or legal guardian, if
1612
the parent or legal guardian is not the sex offender, understands
1613
the need for and agrees to the safety plan and has agreed to
1614
provide, or to designate another adult to provide, constant
1615
supervision any time the child is in contact with the offender.
1616
1617
The commission may not appoint a person to conduct a risk
1618
assessment and may not accept a risk assessment from a person who
1619
has not demonstrated to the commission that he or she has met the
1620
requirements of a qualified practitioner as defined in this
1621
section.
1622
6. If the victim was under age 18, a prohibition on working
1623
for pay or as a volunteer at any school, day care center, park,
1624
playground, or other place where children regularly congregate,
1625
as prescribed by the commission.
1626
7. Unless otherwise indicated in the treatment plan
1627
provided by the sexual offender treatment program, a prohibition
1628
on viewing, owning, or possessing any obscene, pornographic, or
1629
sexually stimulating visual or auditory material, including
1630
telephone, electronic media, computer programs, or computer
1631
services that are relevant to the offender's deviant behavior
1632
pattern.
1633
8. Effective for a releasee whose crime is committed on or
1634
after July 1, 2005, a prohibition on accessing the Internet or
1635
other computer services until the offender's sex offender
1636
treatment program, after a risk assessment is completed, approves
1637
and implements a safety plan for the offender's accessing or
1638
using the Internet or other computer services.
1639
9. A requirement that the releasee must submit two
1640
specimens of blood to the Florida Department of Law Enforcement
1641
to be registered with the DNA database.
1642
10. A requirement that the releasee make restitution to the
1643
victim, as determined by the sentencing court or the commission,
1644
for all necessary medical and related professional services
1645
relating to physical, psychiatric, and psychological care.
1646
11. Submission to a warrantless search by the community
1647
control or probation officer of the probationer's or community
1648
controllee's person, residence, or vehicle.
1649
(b) For a releasee whose crime was committed on or after
1650
October 1, 1997, in violation of chapter 794, s. 800.04, s.
1652
conditional release supervision, in addition to any other
1653
provision of this subsection, the commission shall impose the
1654
following additional conditions of conditional release
1655
supervision:
1656
1. As part of a treatment program, participation in a
1657
minimum of one annual polygraph examination to obtain information
1658
necessary for risk management and treatment and to reduce the sex
1659
offender's denial mechanisms. The polygraph examination must be
1660
conducted by a polygrapher trained specifically in the use of the
1661
polygraph for the monitoring of sex offenders, where available,
1662
and at the expense of the sex offender. The results of the
1663
polygraph examination shall not be used as evidence in a hearing
1664
to prove that a violation of supervision has occurred.
1665
2. Maintenance of a driving log and a prohibition against
1666
driving a motor vehicle alone without the prior approval of the
1667
supervising officer.
1668
3. A prohibition against obtaining or using a post office
1669
box without the prior approval of the supervising officer.
1670
4. If there was sexual contact, a submission to, at the
1671
probationer's or community controllee's expense, an HIV test with
1672
the results to be released to the victim or the victim's parent
1673
or guardian.
1674
5. Electronic monitoring of any form when ordered by the
1675
commission.
1676
Section 30. Subsection (2) of section 948.013, Florida
1677
Statutes, is amended to read:
1678
948.013 Administrative probation.--
1679
(2) Effective for an offense committed on or after July 1,
1680
1998, a person is ineligible for placement on administrative
1681
probation if the person is sentenced to or is serving a term of
1682
probation or community control, regardless of the conviction or
1683
adjudication, for committing, or attempting, conspiring, or
1684
soliciting to commit, any of the felony offenses described in s.
1686
defendant is not the victim's parent; s. 787.025; chapter 794; s.
1689
Section 31. Subsection (2) of section 948.03, Florida
1690
Statutes, is amended to read:
1691
948.03 Terms and conditions of probation.--
1692
(2) The enumeration of specific kinds of terms and
1693
conditions shall not prevent the court from adding thereto such
1694
other or others as it considers proper. However, the sentencing
1695
court may only impose a condition of supervision allowing an
1698
order stipulates that it is contingent upon the approval of the
1699
receiving state interstate compact authority. The court may
1700
rescind or modify at any time the terms and conditions
1701
theretofore imposed by it upon the probationer. However, if the
1702
court withholds adjudication of guilt or imposes a period of
1703
incarceration as a condition of probation, the period shall not
1704
exceed 364 days, and incarceration shall be restricted to either
1705
a county facility, a probation and restitution center under the
1706
jurisdiction of the Department of Corrections, a probation
1707
program drug punishment phase I secure residential treatment
1708
institution, or a community residential facility owned or
1709
operated by any entity providing such services.
1710
Section 32. Paragraph (c) of subsection (8) of section
1711
948.06, Florida Statutes, is amended to read:
1712
948.06 Violation of probation or community control;
1713
revocation; modification; continuance; failure to pay restitution
1714
or cost of supervision.--
1715
(8)
1716
(c) For purposes of this section, the term "qualifying
1717
offense" means any of the following:
1718
1. Kidnapping or attempted kidnapping under s. 787.01,
1719
false imprisonment of a child under the age of 13 under s.
1721
or (c).
1722
2. Murder or attempted murder under s. 782.04, attempted
1724
3. Aggravated battery or attempted aggravated battery under
1725
s. 784.045.
1726
4. Sexual battery or attempted sexual battery under s.
1727
794.011(2), (3), (4), or (8)(b) or (c).
1728
5. Lewd or lascivious battery or attempted lewd or
1729
lascivious battery under s. 800.04(4), lewd or lascivious
1730
molestation under s. 800.04(5)(b) or (c)2., lewd or lascivious
1731
conduct under s. 800.04(6)(b), or lewd or lascivious exhibition
1732
under s. 800.04(7)(b)(c), or lewd or lascivious exhibition on
1733
computer under s. 847.01355(2).
1734
6. Robbery or attempted robbery under s. 812.13, carjacking
1735
or attempted carjacking under s. 812.133, or home invasion
1736
robbery or attempted home invasion robbery under s. 812.135.
1737
7. Lewd or lascivious offense upon or in the presence of an
1738
elderly or disabled person or attempted lewd or lascivious
1739
offense upon or in the presence of an elderly or disabled person
1740
under s. 825.1025.
1741
8. Sexual performance by a child or attempted sexual
1742
performance by a child under s. 827.071.
1743
9. Computer pornography under s. 847.0135(2) or (3),
1744
transmission of child pornography under s. 847.0137, or selling
1745
or buying of minors under s. 847.0145.
1746
10. Poisoning food or water under s. 859.01.
1747
11. Abuse of a dead human body under s. 872.06.
1748
12. Any burglary offense or attempted burglary offense that
1749
is either a first degree felony or second degree felony under s.
1750
810.02(2) or (3).
1751
13. Arson or attempted arson under s. 806.01(1).
1752
14. Aggravated assault under s. 784.021.
1753
15. Aggravated stalking under s. 784.048(3), (4), (5), or
1754
(7).
1755
16. Aircraft piracy under s. 860.16.
1756
17. Unlawful throwing, placing, or discharging of a
1757
destructive device or bomb under s. 790.161(2), (3), or (4).
1758
18. Treason under s. 876.32.
1759
19. Any offense committed in another jurisdiction which
1760
would be an offense listed in this paragraph if that offense had
1761
been committed in this state.
1762
Section 33. Subsection (2) of section 948.101, Florida
1763
Statutes, is amended to read:
1764
948.101 Terms and conditions of community control and
1765
criminal quarantine community control.--
1766
(2) The enumeration of specific kinds of terms and
1767
conditions does not prevent the court from adding thereto any
1768
other terms or conditions that the court considers proper.
1769
However, the sentencing court may only impose a condition of
1770
supervision allowing an offender convicted of s. 794.011, s.
1772
another state if the order stipulates that it is contingent upon
1773
the approval of the receiving state interstate compact authority.
1774
The court may rescind or modify at any time the terms and
1775
conditions theretofore imposed by it upon the offender in
1776
community control. However, if the court withholds adjudication
1777
of guilt or imposes a period of incarceration as a condition of
1778
community control, the period may not exceed 364 days, and
1779
incarceration shall be restricted to a county facility, a
1780
probation and restitution center under the jurisdiction of the
1781
Department of Corrections, a probation program drug punishment
1782
phase I secure residential treatment institution, or a community
1783
residential facility owned or operated by any entity providing
1784
such services.
1785
Section 34. Subsections (1) and (2) of section 948.30,
1786
Florida Statutes, are amended to read:
1787
948.30 Additional terms and conditions of probation or
1788
community control for certain sex offenses.--Conditions imposed
1789
pursuant to this section do not require oral pronouncement at the
1790
time of sentencing and shall be considered standard conditions of
1791
probation or community control for offenders specified in this
1792
section.
1793
(1) Effective for probationers or community controllees
1794
whose crime was committed on or after October 1, 1995, and who
1795
are placed under supervision for violation of chapter 794, s.
1797
impose the following conditions in addition to all other standard
1798
and special conditions imposed:
1799
(a) A mandatory curfew from 10 p.m. to 6 a.m. The court may
1800
designate another 8-hour period if the offender's employment
1801
precludes the above specified time, and the alternative is
1802
recommended by the Department of Corrections. If the court
1803
determines that imposing a curfew would endanger the victim, the
1804
court may consider alternative sanctions.
1805
(b) If the victim was under the age of 18, a prohibition on
1806
living within 1,000 feet of a school, day care center, park,
1807
playground, or other place where children regularly congregate,
1808
as prescribed by the court. The 1,000-foot distance shall be
1809
measured in a straight line from the offender's place of
1810
residence to the nearest boundary line of the school, day care
1811
center, park, playground, or other place where children
1812
congregate. The distance may not be measured by a pedestrian
1813
route or automobile route.
1814
(c) Active participation in and successful completion of a
1815
sex offender treatment program with qualified practitioners
1816
specifically trained to treat sex offenders, at the probationer's
1817
or community controllee's own expense. If a qualified
1818
practitioner is not available within a 50-mile radius of the
1819
probationer's or community controllee's residence, the offender
1820
shall participate in other appropriate therapy.
1821
(d) A prohibition on any contact with the victim, directly
1822
or indirectly, including through a third person, unless approved
1823
by the victim, the offender's therapist, and the sentencing
1824
court.
1825
(e) If the victim was under the age of 18, a prohibition on
1826
contact with a child under the age of 18 except as provided in
1827
this paragraph. The court may approve supervised contact with a
1828
child under the age of 18 if the approval is based upon a
1829
recommendation for contact issued by a qualified practitioner who
1830
is basing the recommendation on a risk assessment. Further, the
1831
sex offender must be currently enrolled in or have successfully
1832
completed a sex offender therapy program. The court may not grant
1833
supervised contact with a child if the contact is not recommended
1834
by a qualified practitioner and may deny supervised contact with
1835
a child at any time. When considering whether to approve
1836
supervised contact with a child, the court must review and
1837
consider the following:
1838
1. A risk assessment completed by a qualified practitioner.
1839
The qualified practitioner must prepare a written report that
1840
must include the findings of the assessment and address each of
1841
the following components:
1842
a. The sex offender's current legal status;
1843
b. The sex offender's history of adult charges with
1844
apparent sexual motivation;
1845
c. The sex offender's history of adult charges without
1846
apparent sexual motivation;
1847
d. The sex offender's history of juvenile charges, whenever
1848
available;
1849
e. The sex offender's offender treatment history, including
1850
consultations with the sex offender's treating, or most recent
1851
treating, therapist;
1852
f. The sex offender's current mental status;
1853
g. The sex offender's mental health and substance abuse
1854
treatment history as provided by the Department of Corrections;
1855
h. The sex offender's personal, social, educational, and
1856
work history;
1857
i. The results of current psychological testing of the sex
1858
offender if determined necessary by the qualified practitioner;
1859
j. A description of the proposed contact, including the
1860
location, frequency, duration, and supervisory arrangement;
1861
k. The child's preference and relative comfort level with
1862
the proposed contact, when age appropriate;
1863
l. The parent's or legal guardian's preference regarding
1864
the proposed contact; and
1865
m. The qualified practitioner's opinion, along with the
1866
basis for that opinion, as to whether the proposed contact would
1867
likely pose significant risk of emotional or physical harm to the
1868
child.
1869
1870
The written report of the assessment must be given to the court;
1871
2. A recommendation made as a part of the risk assessment
1872
report as to whether supervised contact with the child should be
1873
approved;
1874
3. A written consent signed by the child's parent or legal
1875
guardian, if the parent or legal guardian is not the sex
1876
offender, agreeing to the sex offender having supervised contact
1877
with the child after receiving full disclosure of the sex
1878
offender's present legal status, past criminal history, and the
1879
results of the risk assessment. The court may not approve contact
1880
with the child if the parent or legal guardian refuses to give
1881
written consent for supervised contact;
1882
4. A safety plan prepared by the qualified practitioner,
1883
who provides treatment to the offender, in collaboration with the
1884
sex offender, the child's parent or legal guardian, if the parent
1885
or legal guardian is not the sex offender, and the child, when
1886
age appropriate, which details the acceptable conditions of
1887
contact between the sex offender and the child. The safety plan
1888
must be reviewed and approved by the court; and
1889
5. Evidence that the child's parent or legal guardian
1890
understands the need for and agrees to the safety plan and has
1891
agreed to provide, or to designate another adult to provide,
1892
constant supervision any time the child is in contact with the
1893
offender.
1894
1895
The court may not appoint a person to conduct a risk assessment
1896
and may not accept a risk assessment from a person who has not
1897
demonstrated to the court that he or she has met the requirements
1898
of a qualified practitioner as defined in this section.
1899
(f) If the victim was under age 18, a prohibition on
1900
working for pay or as a volunteer at any place where children
1901
regularly congregate, including, but not limited to, schools, day
1902
care centers, parks, playgrounds, pet stores, libraries, zoos,
1903
theme parks, and malls.
1904
(g) Unless otherwise indicated in the treatment plan
1905
provided by the sexual offender treatment program, a prohibition
1906
on viewing, accessing, owning, or possessing any obscene,
1907
pornographic, or sexually stimulating visual or auditory
1908
material, including telephone, electronic media, computer
1909
programs, or computer services that are relevant to the
1910
offender's deviant behavior pattern.
1911
(h) Effective for probationers and community controllees
1912
whose crime is committed on or after July 1, 2005, a prohibition
1913
on accessing the Internet or other computer services until the
1914
offender's sex offender treatment program, after a risk
1915
assessment is completed, approves and implements a safety plan
1916
for the offender's accessing or using the Internet or other
1917
computer services.
1918
(i) A requirement that the probationer or community
1919
controllee must submit a specimen of blood or other approved
1920
biological specimen to the Department of Law Enforcement to be
1921
registered with the DNA data bank.
1922
(j) A requirement that the probationer or community
1923
controllee make restitution to the victim, as ordered by the
1924
court under s. 775.089, for all necessary medical and related
1925
professional services relating to physical, psychiatric, and
1926
psychological care.
1927
(k) Submission to a warrantless search by the community
1928
control or probation officer of the probationer's or community
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controllee's person, residence, or vehicle.
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(2) Effective for a probationer or community controllee
1931
whose crime was committed on or after October 1, 1997, and who is
1932
placed on community control or sex offender probation for a
1934
s. 847.0145, in addition to any other provision of this section,
1935
the court must impose the following conditions of probation or
1936
community control:
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(a) As part of a treatment program, participation at least
1938
annually in polygraph examinations to obtain information
1939
necessary for risk management and treatment and to reduce the sex
1940
offender's denial mechanisms. A polygraph examination must be
1941
conducted by a polygrapher trained specifically in the use of the
1942
polygraph for the monitoring of sex offenders, where available,
1943
and shall be paid for by the sex offender. The results of the
1944
polygraph examination shall not be used as evidence in court to
1945
prove that a violation of community supervision has occurred.
1946
(b) Maintenance of a driving log and a prohibition against
1947
driving a motor vehicle alone without the prior approval of the
1948
supervising officer.
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(c) A prohibition against obtaining or using a post office
1950
box without the prior approval of the supervising officer.
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(d) If there was sexual contact, a submission to, at the
1952
probationer's or community controllee's expense, an HIV test with
1953
the results to be released to the victim or the victim's parent
1954
or guardian.
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(e) Electronic monitoring when deemed necessary by the
1956
community control or probation officer and his or her supervisor,
1957
and ordered by the court at the recommendation of the Department
1958
of Corrections.
1959
Section 35. Subsection (1) of section 948.31, Florida
1960
Statutes, is amended to read:
1961
948.31 Diagnosis, evaluation, and treatment of offenders
1962
placed on probation or community control for certain sex offenses
1963
or child exploitation.--The court shall require a diagnosis and
1964
evaluation to determine the need of a probationer or offender in
1965
community control for treatment. If the court determines that a
1966
need therefor is established by such diagnosis and evaluation
1967
process, the court shall require outpatient counseling as a term
1968
or condition of probation or community control for any person who
1969
was found guilty of any of the following, or whose plea of guilty
1970
or nolo contendere to any of the following was accepted by the
1971
court:
1972
(1) Lewd or lascivious battery, lewd or lascivious
1973
molestation, lewd or lascivious conduct, or lewd or lascivious
1975
1976
Such counseling shall be required to be obtained from a community
1977
mental health center, a recognized social service agency
1978
providing mental health services, or a private mental health
1979
professional or through other professional counseling. The plan
1980
for counseling for the individual shall be provided to the court
1981
for review.
1982
Section 36. Subsection (1) of section 948.32, Florida
1983
Statutes, is amended to read:
1984
948.32 Requirements of law enforcement agency upon arrest
1985
of persons for certain sex offenses.--
1986
(1) When any state or local law enforcement agency
1987
investigates or arrests a person for committing, or attempting,
1988
soliciting, or conspiring to commit, a violation of s.
1991
enforcement agency shall contact the Department of Corrections to
1992
verify whether the person under investigation or under arrest is
1993
on probation, community control, parole, conditional release, or
1994
control release.
1995
Section 37. This act shall take effect July 1, 2008.
CODING: Words stricken are deletions; words underlined are additions.