Florida Senate - 2008 CS for SB 1442
By the Committee on Criminal Justice; and Senator Dockery
591-04505-08 20081442c1
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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.; permitting use of a pseudonym to designate the
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victim of a crime involving a victim of production,
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possession, or promotion of child pornography; revising
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provisions concerning use of victim pseudonyms to specify
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that they may be used in civil and criminal proceedings;
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amending s. 800.04, F.S., relating to lewd or lascivious
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exhibition, to conform to changes made by the act;
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amending s. 847.0135, F.S.; conforming provisions to
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changes made by the act; creating s. 847.002, F.S.;
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requiring law enforcement officers to provide certain
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information to the National Center for Missing and
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Exploited Children; requiring law enforcement officers
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submitting a case for prosecution that involves the
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creation, possession, or promotion of child pornography to
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provide specified information to prosecutors; requiring
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prosecutors to enter specified information in a database
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maintained by the Attorney General; creating s. 847.01357,
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F.S.; providing a civil remedy for any person who, while
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under the age of 18, was a victim of certain sexual abuse
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crimes 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; providing for limitation of actions; providing
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for confidential pseudonyms to specified claimants;
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precluding a defense to certain civil actions; permitting
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the Attorney General to pursue cases on behalf of victims;
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providing for disposition of damages and attorney's fees;
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amending s. 960.03, F.S.; expanding the definition of
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"crime" for purposes of victim compensation to include
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847.038, related to online sexual exploitation and child
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pornography; defining the term "known victim of child
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pornography;" expanding the definition of "victim" for
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purposes of victim compensation to include a person less
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than 18 years of age who was present at the scene of a
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crime, saw or heard the crime, and suffered a psychiatric
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or psychological injury because of the crime, but who was
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not physically injured; creating s. 960.197, F.S.;
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authorizing victim compensation awards to certain persons
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who suffer psychiatric or psychological injury as a result
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to changes made by the 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 more than 1,200 victims of child
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pornography are known by law enforcement agencies, more than 30
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of whom were residents of this state at the time of their abuse,
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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. Subsection (3) of section 92.56, Florida
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Statutes, is 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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(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 the production, possession, or promotion of child
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pornography as described in chapter 847, in all court records and
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records of court proceedings, both civil and criminal.
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Section 2. Subsection (7) of section 800.04, Florida
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Statutes, is amended to 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) 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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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. The fact
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that an undercover operative or law enforcement officer was
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involved in the detection and investigation of an offense under
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this paragraph shall not constitute a defense to a prosecution
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under this paragraph.
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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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Section 3. Present subsections (5), (6), and (7) of section
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847.0135, Florida Statutes, are renumbered as subsections (6),
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(7), and (8), respectively, and a new subsection (5) is added to
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that section, to read:
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847.0135 Computer pornography; traveling to meet minor;
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penalties.--
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(5) CERTAIN COMPUTER TRANSMISSIONS PROHIBITED.--
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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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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 subsection. 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 subsection shall not
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constitute a defense to a prosecution under this subsection.
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(b) 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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(c) 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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(d) A mother's breastfeeding of her baby does not under any
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circumstance constitute a violation of this subsection.
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Section 4. 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 who, pursuant to a criminal
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investigation, recovers images of child pornography shall:
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(a) Provide such images and any information regarding the
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identity of a child depicted in such images to the National
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Center for Missing and Exploited Children, Child Victim
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Identification Program; and
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(b) Request the law enforcement contact information from
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the National Center for Missing and Exploited Children, Child
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Victim Identification Program for any images recovered which
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contain a known victim of child pornography, as defined in s.
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(2) Any law enforcement officer submitting a case for
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prosecution which involves the production, promotion, or
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possession of child pornography shall submit to the designated
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prosecutor the law enforcement agency contact information
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provided by the National Center for Missing and Exploited
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Children, Child Victim Identification Program for any images
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involved in the case which contain the depiction of a known
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victim of child pornography as defined in s. 960.03.
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(3) In every filed case involving a known victim of child
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pornography, as defined in s. 960.03, the prosecuting agency
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shall enter the following information into the Victims in Child
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Pornography Tracking Repeat Exploitation database maintained by
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the Office of the Attorney 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 5. 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, while under the age of 18, was a victim
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of a sexual abuse crime listed in chapter 794, chapter 800,
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chapter 827, or chapter 847, wherein any portion of such abuse
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was used in the production of child pornography, and who suffers
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personal or psychological injury as a result of the production,
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promotion, or possession of such images, may bring an action in
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any appropriate state court against the producer, promoter, or
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possessor of such images, regardless of whether the victim is now
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an adult. In any action brought under this section, a prevailing
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plaintiff shall recover the actual damages such person sustained
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and the cost of the suit, including reasonable attorney's fees.
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Any such victim who is awarded damages under this section shall
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be deemed to have sustained damages of no less than $150,000.
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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 after
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the 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 a law
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enforcement agency of the creation, possession, or promotion of
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pornographic images; or
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(c) In the case of a victim 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 pseudonym, pursuant to s.
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92.56(3), which shall be issued and maintained by the Department
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of Legal Affairs for use in all legal pleadings. This identifier
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shall be fully recognized in all courts in this state as a valid
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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 victim 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, at the victim's request and
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pursuant to agency approval, the Office of the Attorney General
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may pursue cases on behalf of any Florida victim under this
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section. All damages obtained in such cases shall go to the
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victim, and the Office of the Attorney General may seek
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reasonable attorney's fees and costs as authorized under this
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section.
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Section 6. Paragraph (d) is added to subsection (3) of
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section 960.03, Florida Statutes, present subsections (10)
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through (13) of that section are renumbered as subsections (11)
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through (14), respectively, a new subsection (10) is added to
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that section, and present subsection (13) of that section is
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amended, to read:
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(3) "Crime" means:
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or s. 847.0138 related to online sexual exploitation and child
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pornography.
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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 a law enforcement agency and provided to
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the National Center for Missing and Exploited Children's Child
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Victim 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 18 16 years of age who was present
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at 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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Section 7. Section 960.197, Florida Statutes, is created to
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read:
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960.197 Assistance to victims of online sexual exploitation
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and child pornography.--
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(1) Notwithstanding the criteria set forth in s. 960.13 for
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crime victim compensation awards, the department may award
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compensation for counseling and other mental health services to
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treat psychological injury or trauma to:
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(a) A child less than 18 years of age who suffers
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psychiatric or psychological injury as a direct result of online
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sexual exploitation under any provision of s. 827.071, s.
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sustain a personal injury or death; or
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(b) Any person who, while under the age of 18, was depicted
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in any image or video, regardless of length, of child pornography
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as defined in s. 847.001 and who has been identified by a law
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enforcement agency or the National Center for Missing and
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Exploited Children as a known victim of child pornography, who
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suffers psychiatric or psychological injury as a direct result of
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the crime, and who does not otherwise sustain a personal injury
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or death.
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(2) Compensation under this section is not contingent upon
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pursuit of a criminal investigation or prosecution.
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Section 8. 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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years of age or younger.
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Section 9. Subsection (2) of section 92.565, Florida
311
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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847.0135(5), or any other crime involving sexual abuse of
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another, or with any attempt, solicitation, or conspiracy to
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commit any of these crimes, the defendant's memorialized
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confession or admission is admissible during trial without the
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state having to prove a corpus delicti of the crime if the court
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finds in a hearing conducted outside the presence of the jury
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that the state is unable to show the existence of each element of
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the crime, and having so found, further finds that the
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defendant's confession or admission is trustworthy. Factors which
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may be relevant in determining whether the state is unable to
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show the existence of each element of the crime include, but are
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not limited to, the fact that, at the time the crime was
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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 10. 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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presence of the child in violation of s. 800.04 or s.
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847.0135(5);
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Section 11. 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 12. 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
398
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
401
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
406
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
408
section, such defendant is not eligible for sentencing under the
409
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
413
imprisonment of 30 years;
414
c. For a felony of the second degree, by a term of
415
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 13. Paragraph (d) of subsection (1) of section
419
775.084, Florida Statutes, is amended to read:
420
775.084 Violent career criminals; habitual felony offenders
421
and habitual violent felony offenders; three-time violent felony
422
offenders; definitions; procedure; enhanced penalties or
423
mandatory minimum prison terms.--
424
(1) As used in this act:
425
(d) "Violent career criminal" means a defendant for whom
426
the court must impose imprisonment pursuant to paragraph (4)(d),
427
if it finds that:
428
1. The defendant has previously been convicted as an adult
429
three or more times for an offense in this state or other
430
qualified offense that is:
431
a. Any forcible felony, as described in s. 776.08;
432
b. Aggravated stalking, as described in s. 784.048(3) and
433
(4);
434
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,
436
as described in s. 825.102(2);
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e. Lewd or lascivious battery, lewd or lascivious
438
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
442
possession of a firearm.
443
2. The defendant has been incarcerated in a state prison or
444
a federal prison.
445
3. The primary felony offense for which the defendant is to
446
be sentenced is a felony enumerated in subparagraph 1. and was
447
committed on or after October 1, 1995, and:
448
a. While the defendant was serving a prison sentence or
449
other sentence, or court-ordered or lawfully imposed supervision
450
that is imposed as a result of a prior conviction for an
451
enumerated felony; or
452
b. Within 5 years after the conviction of the last prior
453
enumerated felony, or within 5 years after the defendant's
454
release from a prison sentence, probation, community control,
455
control release, conditional release, parole, or court-ordered or
456
lawfully imposed supervision or other sentence that is imposed as
457
a result of a prior conviction for an enumerated felony,
458
whichever is later.
459
4. The defendant has not received a pardon for any felony
460
or other qualified offense that is necessary for the operation of
461
this paragraph.
462
5. A conviction of a felony or other qualified offense
463
necessary to the operation of this paragraph has not been set
464
aside in any postconviction proceeding.
465
Section 14. Paragraph (a) of subsection (13) and paragraph
466
(a) of subsection (16) of section 775.15, Florida Statutes, are
467
amended to read:
468
775.15 Time limitations; general time limitations;
469
exceptions.--
470
(13)(a) If the victim of a violation of s. 794.011, former
472
847.0135(5) is under the age of 18, the applicable period of
473
limitation, if any, does not begin to run until the victim has
474
reached the age of 18 or the violation is reported to a law
475
enforcement agency or other governmental agency, whichever occurs
476
earlier. Such law enforcement agency or other governmental agency
477
shall promptly report such allegation to the state attorney for
478
the judicial circuit in which the alleged violation occurred. If
479
the offense is a first or second degree felony violation of s.
480
794.011, and the offense is reported within 72 hours after its
481
commission, the prosecution for such offense may be commenced at
482
any time. This paragraph applies to any such offense except an
483
offense the prosecution of which would have been barred by
484
subsection (2) on or before December 31, 1984.
485
(16)(a) In addition to the time periods prescribed in this
486
section, a prosecution for any of the following offenses may be
487
commenced at any time after the date on which the identity of the
488
accused is established, or should have been established by the
489
exercise of due diligence, through the analysis of
490
deoxyribonucleic acid (DNA) evidence, if a sufficient portion of
491
the evidence collected at the time of the original investigation
492
and tested for DNA is preserved and available for testing by the
493
accused:
494
1. Aggravated battery or any felony battery offense under
495
chapter 784.
496
2. Kidnapping under s. 787.01 or false imprisonment under
497
s. 787.02.
498
3. An offense of sexual battery under chapter 794.
499
4. A lewd or lascivious offense under s. 800.04, or s.
501
5. A burglary offense under s. 810.02.
503
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7. Carjacking under s. 812.133.
505
8. Aggravated child abuse under s. 827.03.
506
Section 15. Paragraph (a) of subsection (4) and paragraph
507
(b) of subsection (10) of section 775.21, Florida Statutes, are
508
amended to read:
509
775.21 The Florida Sexual Predators Act.--
510
(4) SEXUAL PREDATOR CRITERIA.--
511
(a) For a current offense committed on or after October 1,
512
1993, upon conviction, an offender shall be designated as a
513
"sexual predator" under subsection (5), and subject to
514
registration under subsection (6) and community and public
515
notification under subsection (7) if:
516
1. The felony is:
517
a. A capital, life, or first-degree felony violation, or
519
is a minor and the defendant is not the victim's parent or
521
violation of a similar law of another jurisdiction; or
522
b. Any felony violation, or any attempt thereof, of s.
524
minor and the defendant is not the victim's parent or guardian;
528
similar law of another jurisdiction, and the offender has
529
previously been convicted of or found to have committed, or has
530
pled nolo contendere or guilty to, regardless of adjudication,
532
the victim is a minor and the defendant is not the victim's
537
another jurisdiction;
538
2. The offender has not received a pardon for any felony or
539
similar law of another jurisdiction that is necessary for the
540
operation of this paragraph; and
541
3. A conviction of a felony or similar law of another
542
jurisdiction necessary to the operation of this paragraph has not
543
been set aside in any postconviction proceeding.
544
(10) PENALTIES.--
545
(b) A sexual predator who has been convicted of or found to
546
have committed, or has pled nolo contendere or guilty to,
547
regardless of adjudication, any violation, or attempted
549
the victim is a minor and the defendant is not the victim's
553
violation of a similar law of another jurisdiction when the
554
victim of the offense was a minor, and who works, whether for
555
compensation or as a volunteer, at any business, school, day care
556
center, park, playground, or other place where children regularly
557
congregate, commits a felony of the third degree, punishable as
559
Section 16. Subsections (7) and (8) of section 784.048,
560
Florida Statutes, are amended to read:
561
784.048 Stalking; definitions; penalties.--
562
(7) Any person who, after having been sentenced for a
564
prohibited from contacting the victim of the offense under s.
565
921.244, willfully, maliciously, and repeatedly follows,
566
harasses, or cyberstalks the victim commits the offense of
567
aggravated stalking, a felony of the third degree, punishable as
569
(8) The punishment imposed under this section shall run
570
consecutive to any former sentence imposed for a conviction for
572
Section 17. Paragraph (a) of subsection (3) of section
573
787.01, Florida Statutes, is amended to read:
574
787.01 Kidnapping; kidnapping of child under age 13,
575
aggravating circumstances.--
576
(3)(a) A person who commits the offense of kidnapping upon
577
a child under the age of 13 and who, in the course of committing
578
the offense, commits one or more of the following:
579
1. Aggravated child abuse, as defined in s. 827.03;
580
2. Sexual battery, as defined in chapter 794, against the
581
child;
582
3. Lewd or lascivious battery, lewd or lascivious
583
molestation, lewd or lascivious conduct, or lewd or lascivious
586
prostitution, upon the child; or
587
5. Exploitation of the child or allowing the child to be
588
exploited, in violation of s. 450.151,
589
590
commits a life felony, punishable as provided in s. 775.082, s.
592
Section 18. Paragraph (a) of subsection (3) of section
593
787.02, Florida Statutes, is amended to read:
594
787.02 False imprisonment; false imprisonment of child
595
under age 13, aggravating circumstances.--
596
(3)(a) A person who commits the offense of false
597
imprisonment upon a child under the age of 13 and who, in the
598
course of committing the offense, commits any offense enumerated
599
in subparagraphs 1.-5., commits a felony of the first degree,
600
punishable by imprisonment for a term of years not exceeding life
602
1. Aggravated child abuse, as defined in s. 827.03;
603
2. Sexual battery, as defined in chapter 794, against the
604
child;
605
3. Lewd or lascivious battery, lewd or lascivious
606
molestation, lewd or lascivious conduct, or lewd or lascivious
609
prostitution, upon the child; or
610
5. Exploitation of the child or allowing the child to be
611
exploited, in violation of s. 450.151.
612
Section 19. Paragraph (c) of subsection (2) of section
613
787.025, Florida Statutes, is amended to read:
614
787.025 Luring or enticing a child.--
615
(2)
616
(c) A person 18 years of age or older who, having been
617
previously convicted of a violation of chapter 794, or s. 800.04,
618
or s. 847.0135(5), or a violation of a similar law of another
619
jurisdiction, intentionally lures or entices, or attempts to lure
620
or entice, a child under the age of 12 into a structure,
621
dwelling, or conveyance for other than a lawful purpose commits a
622
felony of the third degree, punishable as provided in s. 775.082,
624
Section 20. Section 794.065, Florida Statutes, is amended
625
to read:
626
794.065 Unlawful place of residence for persons convicted
627
of certain sex offenses.--
628
(1) It is unlawful for any person who has been convicted of
630
or s. 847.0145, regardless of whether adjudication has been
631
withheld, in which the victim of the offense was less than 16
632
years of age, to reside within 1,000 feet of any school, day care
633
center, park, or playground. A person who violates this section
636
first degree or higher commits a felony of the third degree,
638
violates this section and whose conviction under s. 794.011, s.
640
as a felony of the second or third degree commits a misdemeanor
641
of the first degree, punishable as provided in s. 775.082 or s.
642
643
(2) This section applies to any person convicted of a
645
or s. 847.0145 for offenses that occur on or after October 1,
646
2004.
647
Section 21. Section 914.16, Florida Statutes, is amended to
648
read:
649
914.16 Child abuse and sexual abuse of victims under age 16
650
or persons with mental retardation; limits on interviews.--The
651
chief judge of each judicial circuit, after consultation with the
652
state attorney and the public defender for the judicial circuit,
653
the appropriate chief law enforcement officer, and any other
654
person deemed appropriate by the chief judge, shall provide by
655
order reasonable limits on the number of interviews that a victim
657
847.0135(5) who is under 16 years of age or a victim of a
659
is a person with mental retardation as defined in s. 393.063 must
660
submit to for law enforcement or discovery purposes. The order
661
shall, to the extent possible, protect the victim from the
662
psychological damage of repeated interrogations while preserving
663
the rights of the public, the victim, and the person charged with
664
the violation.
665
Section 22. Paragraphs (d) and (e) of subsection (3) of
666
section 921.0022, Florida Statutes, are amended to read:
667
921.0022 Criminal Punishment Code; offense severity ranking
668
chart.--
669
(3) OFFENSE SEVERITY RANKING CHART
670
(d) LEVEL 4
671
| FloridaStatute | FelonyDegree | Description |
672
| 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. |
673
| 499.0051(1) | 3rd | Failure to maintain or deliver pedigree papers. |
674
| 499.0051(2) | 3rd | Failure to authenticate pedigree papers. |
675
| 499.0051(6) | 2nd | Sale or delivery, or possession with intent to sell, contraband legend drugs. |
676
| 784.07(2)(b) | 3rd | Battery of law enforcement officer, firefighter, intake officer, etc. |
677
| 784.074(1)(c) | 3rd | Battery of sexually violent predators facility staff. |
678
| 784.075 | 3rd | Battery on detention or commitment facility staff. |
679
| 784.078 | 3rd | Battery of facility employee by throwing, tossing, or expelling certain fluids or materials. |
680
| 784.08(2)(c) | 3rd | Battery on a person 65 years of age or older. |
681
| 784.081(3) | 3rd | Battery on specified official or employee. |
682
| 784.082(3) | 3rd | Battery by detained person on visitor or other detainee. |
683
| 784.083(3) | 3rd | Battery on code inspector. |
684
| 784.085 | 3rd | Battery of child by throwing, tossing, projecting, or expelling certain fluids or materials. |
685
| 787.03(1) | 3rd | Interference with custody; wrongly takes minor from appointed guardian. |
686
| 787.04(2) | 3rd | Take, entice, or remove child beyond state limits with criminal intent pending custody proceedings. |
687
| 787.04(3) | 3rd | Carrying child beyond state lines with criminal intent to avoid producing child at custody hearing or delivering to designated person. |
688
| 790.115(1) | 3rd | Exhibiting firearm or weapon within 1,000 feet of a school. |
689
| 790.115(2)(b) | 3rd | Possessing electric weapon or device, destructive device, or other weapon on school property. |
690
| 790.115(2)(c) | 3rd | Possessing firearm on school property. |
691
| 800.04(7)(c)(d) | 3rd | Lewd or lascivious exhibition; offender less than 18 years. |
692
| 810.02(4)(a) | 3rd | Burglary, or attempted burglary, of an unoccupied structure; unarmed; no assault or battery. |
693
| 810.02(4)(b) | 3rd | Burglary, or attempted burglary, of an unoccupied conveyance; unarmed; no assault or battery. |
694
| 810.06 | 3rd | Burglary; possession of tools. |
695
| 810.08(2)(c) | 3rd | Trespass on property, armed with firearm or dangerous weapon. |
696
| 812.014(2)(c)3. | 3rd | Grand theft, 3rd degree $10,000 or more but less than $20,000. |
697
| 812.014(2)(c)4.-10. | 3rd | Grand theft, 3rd degree, a will, firearm, motor vehicle, livestock, etc. |
698
| 812.0195(2) | 3rd | Dealing in stolen property by use of the Internet; property stolen $300 or more. |
699
| 817.563(1) | 3rd | Sell or deliver substance other than controlled substance agreed upon, excluding s. 893.03(5) drugs. |
700
| 817.568(2)(a) | 3rd | Fraudulent use of personal identification information. |
701
| 817.625(2)(a) | 3rd | Fraudulent use of scanning device or reencoder. |
702
| 828.125(1) | 2nd | Kill, maim, or cause great bodily harm or permanent breeding disability to any registered horse or cattle. |
703
| 837.02(1) | 3rd | Perjury in official proceedings. |
704
| 837.021(1) | 3rd | Make contradictory statements in official proceedings. |
705
| 838.022 | 3rd | Official misconduct. |
706
| 839.13(2)(a) | 3rd | Falsifying records of an individual in the care and custody of a state agency. |
707
| 839.13(2)(c) | 3rd | Falsifying records of the Department of Children and Family Services. |
708
| 843.021 | 3rd | Possession of a concealed handcuff key by a person in custody. |
709
| 843.025 | 3rd | Deprive law enforcement, correctional, or correctional probation officer of means of protection or communication. |
710
| 843.15(1)(a) | 3rd | Failure to appear while on bail for felony (bond estreature or bond jumping). |
711
| 847.0135(5)(c) | 3rd | Lewd or lascivious exhibition using computer; offender less than 18 years. |
712
| 874.05(1) | 3rd | Encouraging or recruiting another to join a criminal street gang. |
713
| 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). |
714
| 914.14(2) | 3rd | Witnesses accepting bribes. |
715
| 914.22(1) | 3rd | Force, threaten, etc., witness, victim, or informant. |
716
| 914.23(2) | 3rd | Retaliation against a witness, victim, or informant, no bodily injury. |
717
| 918.12 | 3rd | Tampering with jurors. |
718
| 934.215 | 3rd | Use of two-way communications device to facilitate commission of a crime. |
719
720
(e) LEVEL 5
721
| FloridaStatute | FelonyDegree | Description |
722
| 316.027(1)(a) | 3rd | Accidents involving personal injuries, failure to stop; leaving scene. |
723
| 316.1935(4)(a) | 2nd | Aggravated fleeing or eluding. |
724
| 322.34(6) | 3rd | Careless operation of motor vehicle with suspended license, resulting in death or serious bodily injury. |
725
| 327.30(5) | 3rd | Vessel accidents involving personal injury; leaving scene. |
726
| 381.0041(11)(b) | 3rd | Donate blood, plasma, or organs knowing HIV positive. |
727
| 440.10(1)(g) | 2nd | Failure to obtain workers' compensation coverage. |
728
| 440.105(5) | 2nd | Unlawful solicitation for the purpose of making workers' compensation claims. |
729
| 440.381(2) | 2nd | Submission of false, misleading, or incomplete information with the purpose of avoiding or reducing workers' compensation premiums. |
730
| 624.401(4)(b)2. | 2nd | Transacting insurance without a certificate or authority; premium collected $20,000 or more but less than $100,000. |
731
| 626.902(1)(c) | 2nd | Representing an unauthorized insurer; repeat offender. |
732
| 790.01(2) | 3rd | Carrying a concealed firearm. |
733
| 790.162 | 2nd | Threat to throw or discharge destructive device. |
734
| 790.163(1) | 2nd | False report of deadly explosive or weapon of mass destruction. |
735
| 790.221(1) | 2nd | Possession of short-barreled shotgun or machine gun. |
736
| 790.23 | 2nd | Felons in possession of firearms, ammunition, or electronic weapons or devices. |
737
| 800.04(6)(c) | 3rd | Lewd or lascivious conduct; offender less than 18 years. |
738
| 800.04(7)(b)(c) | 2nd | Lewd or lascivious exhibition; offender 18 years or older. |
739
| 806.111(1) | 3rd | Possess, manufacture, or dispense fire bomb with intent to damage any structure or property. |
740
| 812.0145(2)(b) | 2nd | Theft from person 65 years of age or older; $10,000 or more but less than $50,000. |
741
| 812.015(8) | 3rd | Retail theft; property stolen is valued at $300 or more and one or more specified acts. |
742
| 812.019(1) | 2nd | Stolen property; dealing in or trafficking in. |
743
| 812.131(2)(b) | 3rd | Robbery by sudden snatching. |
744
| 812.16(2) | 3rd | Owning, operating, or conducting a chop shop. |
745
| 817.034(4)(a)2. | 2nd | Communications fraud, value $20,000 to $50,000. |
746
| 817.234(11)(b) | 2nd | Insurance fraud; property value $20,000 or more but less than $100,000. |
747
| 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. |
748
| 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. |
749
| 817.625(2)(b) | 2nd | Second or subsequent fraudulent use of scanning device or reencoder. |
750
| 825.1025(4) | 3rd | Lewd or lascivious exhibition in the presence of an elderly person or disabled adult. |
751
| 827.071(4) | 2nd | Possess with intent to promote any photographic material, motion picture, etc., which includes sexual conduct by a child. |
752
| 827.071(5) | 3rd | Possess any photographic material, motion picture, etc., which includes sexual conduct by a child. |
753
| 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. |
754
| 843.01 | 3rd | Resist officer with violence to person; resist arrest with violence. |
755
| 847.0135(5)(b) | 2nd | Lewd or lascivious exhibition using computer; offender 18 years or older. |
756
| 847.0137(2)&(3) | 3rd | Transmission of pornography by electronic device or equipment. |
757
| 847.0138(2)&(3) | 3rd | Transmission of material harmful to minors to a minor by electronic device or equipment. |
758
| 874.05(2) | 2nd | Encouraging or recruiting another to join a criminal street gang; second or subsequent offense. |
759
| 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). |
760
| 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. |
761
| 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. |
762
| 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. |
763
| 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. |
764
| 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). |
765
766
Section 23. Subsections (1) and (3) of section 921.244,
767
Florida Statutes, are amended to read:
768
921.244 Order of no contact; penalties.--
769
(1) At the time of sentencing an offender convicted of a
771
court shall order that the offender be prohibited from having any
772
contact with the victim, directly or indirectly, including
773
through a third person, for the duration of the sentence imposed.
774
The court may reconsider the order upon the request of the victim
775
if the request is made at any time after the victim has attained
776
18 years of age. In considering the request, the court shall
777
conduct an evidentiary hearing to determine whether a change of
778
circumstances has occurred which warrants a change in the court
779
order prohibiting contact and whether it is in the best interest
780
of the victim that the court order be modified or rescinded.
781
(3) The punishment imposed under this section shall run
782
consecutive to any former sentence imposed for a conviction for
784
Section 24. Subsection (1) of section 938.10, Florida
785
Statutes, is amended to read:
786
938.10 Additional court cost imposed in cases of certain
787
crimes against minors.--
788
(1) If a person pleads guilty or nolo contendere to, or is
789
found guilty of, regardless of adjudication, any offense against
790
a minor in violation of s. 784.085, chapter 787, chapter 794, s.
792
s. 985.701, the court shall impose a court cost of $101 against
793
the offender in addition to any other cost or penalty required by
794
law.
795
Section 25. Subsections (1), (2), and (4) of section
796
943.04354, Florida Statutes, are amended to read:
797
943.04354 Removal of the requirement to register as a
798
sexual offender or sexual predator in special circumstances.--
799
(1) For purposes of this section, a person shall be
800
considered for removal of the requirement to register as a sexual
801
offender or sexual predator only if the person:
802
(a) Was or will be convicted or adjudicated delinquent of a
805
847.0135(5) for which adjudication of guilt was or will be
806
withheld, and the person does not have any other conviction,
807
adjudication of delinquency, or withhold of adjudication of guilt
809
(b) Is required to register as a sexual offender or sexual
810
predator solely on the basis of this violation; and
811
(c) Is not more than 4 years older than the victim of this
812
violation who was 14 years of age or older but not more than 17
813
years of age at the time the person committed this violation.
814
(2) If a person meets the criteria in subsection (1) and
816
committed on or after July 1, 2007, the person may move the court
817
that will sentence or dispose of this violation to remove the
818
requirement that the person register as a sexual offender or
819
sexual predator. The person must allege in the motion that he or
820
she meets the criteria in subsection (1) and that removal of the
821
registration requirement will not conflict with federal law. The
822
state attorney must be given notice of the motion at least 21
823
days before the date of sentencing or disposition of this
824
violation and may present evidence in opposition to the requested
825
relief or may otherwise demonstrate why the motion should be
826
denied. At sentencing or disposition of this violation, the court
827
shall rule on this motion and, if the court determines the person
828
meets the criteria in subsection (1) and the removal of the
829
registration requirement will not conflict with federal law, it
830
may grant the motion and order the removal of the registration
831
requirement. If the court denies the motion, the person is not
832
authorized under this section to petition for removal of the
833
registration requirement.
834
(4) If a person provides to the Department of Law
835
Enforcement a certified copy of the court's order removing the
836
requirement that the person register as a sexual offender or
838
s. 847.0135(5), the registration requirement will not apply to
839
the person and the department shall remove all information about
840
the person from the public registry of sexual offenders and
841
sexual predators maintained by the department. However, the
842
removal of this information from the public registry does not
843
mean that the public is denied access to information about the
844
person's criminal history or record that is otherwise available
845
as a public record.
846
Section 26. Subsection (7) of section 947.1405, Florida
847
Statutes, is amended to read:
848
947.1405 Conditional release program.--
849
(7)(a) Any inmate who is convicted of a crime committed on
850
or after October 1, 1995, or who has been previously convicted of
851
a crime committed on or after October 1, 1995, in violation of
853
847.0145, and is subject to conditional release supervision,
854
shall have, in addition to any other conditions imposed, the
855
following special conditions imposed by the commission:
856
1. A mandatory curfew from 10 p.m. to 6 a.m. The commission
857
may designate another 8-hour period if the offender's employment
858
precludes the above specified time, and such alternative is
859
recommended by the Department of Corrections. If the commission
860
determines that imposing a curfew would endanger the victim, the
861
commission may consider alternative sanctions.
862
2. If the victim was under the age of 18, a prohibition on
863
living within 1,000 feet of a school, day care center, park,
864
playground, designated public school bus stop, or other place
865
where children regularly congregate. A releasee who is subject to
866
this subparagraph may not relocate to a residence that is within
867
1,000 feet of a public school bus stop. Beginning October 1,
868
2004, the commission or the department may not approve a
869
residence that is located within 1,000 feet of a school, day care
870
center, park, playground, designated school bus stop, or other
871
place where children regularly congregate for any releasee who is
872
subject to this subparagraph. On October 1, 2004, the department
873
shall notify each affected school district of the location of the
874
residence of a releasee 30 days prior to release and thereafter,
875
if the releasee relocates to a new residence, shall notify any
876
affected school district of the residence of the releasee within
877
30 days after relocation. If, on October 1, 2004, any public
878
school bus stop is located within 1,000 feet of the existing
879
residence of such releasee, the district school board shall
880
relocate that school bus stop. Beginning October 1, 2004, a
881
district school board may not establish or relocate a public
882
school bus stop within 1,000 feet of the residence of a releasee
883
who is subject to this subparagraph. The failure of the district
884
school board to comply with this subparagraph shall not result in
885
a violation of conditional release supervision.
886
3. Active participation in and successful completion of a
887
sex offender treatment program with qualified practitioners
888
specifically trained to treat sex offenders, at the releasee's
889
own expense. If a qualified practitioner is not available within
890
a 50-mile radius of the releasee's residence, the offender shall
891
participate in other appropriate therapy.
892
4. A prohibition on any contact with the victim, directly
893
or indirectly, including through a third person, unless approved
894
by the victim, the offender's therapist, and the sentencing
895
court.
896
5. If the victim was under the age of 18, a prohibition
897
against contact with children under the age of 18 without review
898
and approval by the commission. The commission may approve
899
supervised contact with a child under the age of 18 if the
900
approval is based upon a recommendation for contact issued by a
901
qualified practitioner who is basing the recommendation on a risk
902
assessment. Further, the sex offender must be currently enrolled
903
in or have successfully completed a sex offender therapy program.
904
The commission may not grant supervised contact with a child if
905
the contact is not recommended by a qualified practitioner and
906
may deny supervised contact with a child at any time. When
907
considering whether to approve supervised contact with a child,
908
the commission must review and consider the following:
909
a. A risk assessment completed by a qualified practitioner.
910
The qualified practitioner must prepare a written report that
911
must include the findings of the assessment and address each of
912
the following components:
913
(I) The sex offender's current legal status;
914
(II) The sex offender's history of adult charges with
915
apparent sexual motivation;
916
(III) The sex offender's history of adult charges without
917
apparent sexual motivation;
918
(IV) The sex offender's history of juvenile charges,
919
whenever available;
920
(V) The sex offender's offender treatment history,
921
including a consultation from the sex offender's treating, or
922
most recent treating, therapist;
923
(VI) The sex offender's current mental status;
924
(VII) The sex offender's mental health and substance abuse
925
history as provided by the Department of Corrections;
926
(VIII) The sex offender's personal, social, educational,
927
and work history;
928
(IX) The results of current psychological testing of the
929
sex offender if determined necessary by the qualified
930
practitioner;
931
(X) A description of the proposed contact, including the
932
location, frequency, duration, and supervisory arrangement;
933
(XI) The child's preference and relative comfort level with
934
the proposed contact, when age-appropriate;
935
(XII) The parent's or legal guardian's preference regarding
936
the proposed contact; and
937
(XIII) The qualified practitioner's opinion, along with the
938
basis for that opinion, as to whether the proposed contact would
939
likely pose significant risk of emotional or physical harm to the
940
child.
941
942
The written report of the assessment must be given to the
943
commission.
944
b. A recommendation made as a part of the risk-assessment
945
report as to whether supervised contact with the child should be
946
approved;
947
c. A written consent signed by the child's parent or legal
948
guardian, if the parent or legal guardian is not the sex
949
offender, agreeing to the sex offender having supervised contact
950
with the child after receiving full disclosure of the sex
951
offender's present legal status, past criminal history, and the
952
results of the risk assessment. The commission may not approve
953
contact with the child if the parent or legal guardian refuses to
954
give written consent for supervised contact;
955
d. A safety plan prepared by the qualified practitioner,
956
who provides treatment to the offender, in collaboration with the
957
sex offender, the child's parent or legal guardian, and the
958
child, when age appropriate, which details the acceptable
959
conditions of contact between the sex offender and the child. The
960
safety plan must be reviewed and approved by the Department of
961
Corrections before being submitted to the commission; and
962
e. Evidence that the child's parent or legal guardian, if
963
the parent or legal guardian is not the sex offender, understands
964
the need for and agrees to the safety plan and has agreed to
965
provide, or to designate another adult to provide, constant
966
supervision any time the child is in contact with the offender.
967
968
The commission may not appoint a person to conduct a risk
969
assessment and may not accept a risk assessment from a person who
970
has not demonstrated to the commission that he or she has met the
971
requirements of a qualified practitioner as defined in this
972
section.
973
6. If the victim was under age 18, a prohibition on working
974
for pay or as a volunteer at any school, day care center, park,
975
playground, or other place where children regularly congregate,
976
as prescribed by the commission.
977
7. Unless otherwise indicated in the treatment plan
978
provided by the sexual offender treatment program, a prohibition
979
on viewing, owning, or possessing any obscene, pornographic, or
980
sexually stimulating visual or auditory material, including
981
telephone, electronic media, computer programs, or computer
982
services that are relevant to the offender's deviant behavior
983
pattern.
984
8. Effective for a releasee whose crime is committed on or
985
after July 1, 2005, a prohibition on accessing the Internet or
986
other computer services until the offender's sex offender
987
treatment program, after a risk assessment is completed, approves
988
and implements a safety plan for the offender's accessing or
989
using the Internet or other computer services.
990
9. A requirement that the releasee must submit two
991
specimens of blood to the Florida Department of Law Enforcement
992
to be registered with the DNA database.
993
10. A requirement that the releasee make restitution to the
994
victim, as determined by the sentencing court or the commission,
995
for all necessary medical and related professional services
996
relating to physical, psychiatric, and psychological care.
997
11. Submission to a warrantless search by the community
998
control or probation officer of the probationer's or community
999
controllee's person, residence, or vehicle.
1000
(b) For a releasee whose crime was committed on or after
1001
October 1, 1997, in violation of chapter 794, s. 800.04, s.
1003
conditional release supervision, in addition to any other
1004
provision of this subsection, the commission shall impose the
1005
following additional conditions of conditional release
1006
supervision:
1007
1. As part of a treatment program, participation in a
1008
minimum of one annual polygraph examination to obtain information
1009
necessary for risk management and treatment and to reduce the sex
1010
offender's denial mechanisms. The polygraph examination must be
1011
conducted by a polygrapher trained specifically in the use of the
1012
polygraph for the monitoring of sex offenders, where available,
1013
and at the expense of the sex offender. The results of the
1014
polygraph examination shall not be used as evidence in a hearing
1015
to prove that a violation of supervision has occurred.
1016
2. Maintenance of a driving log and a prohibition against
1017
driving a motor vehicle alone without the prior approval of the
1018
supervising officer.
1019
3. A prohibition against obtaining or using a post office
1020
box without the prior approval of the supervising officer.
1021
4. If there was sexual contact, a submission to, at the
1022
probationer's or community controllee's expense, an HIV test with
1023
the results to be released to the victim or the victim's parent
1024
or guardian.
1025
5. Electronic monitoring of any form when ordered by the
1026
commission.
1027
Section 27. Subsection (2) of section 948.03, Florida
1028
Statutes, is amended to read:
1029
948.03 Terms and conditions of probation.--
1030
(2) The enumeration of specific kinds of terms and
1031
conditions shall not prevent the court from adding thereto such
1032
other or others as it considers proper. However, the sentencing
1033
court may only impose a condition of supervision allowing an
1036
order stipulates that it is contingent upon the approval of the
1037
receiving state interstate compact authority. The court may
1038
rescind or modify at any time the terms and conditions
1039
theretofore imposed by it upon the probationer. However, if the
1040
court withholds adjudication of guilt or imposes a period of
1041
incarceration as a condition of probation, the period shall not
1042
exceed 364 days, and incarceration shall be restricted to either
1043
a county facility, a probation and restitution center under the
1044
jurisdiction of the Department of Corrections, a probation
1045
program drug punishment phase I secure residential treatment
1046
institution, or a community residential facility owned or
1047
operated by any entity providing such services.
1048
Section 28. Paragraph (c) of subsection (8) of section
1049
948.06, Florida Statutes, is amended to read:
1050
948.06 Violation of probation or community control;
1051
revocation; modification; continuance; failure to pay restitution
1052
or cost of supervision.--
1053
(8)
1054
(c) For purposes of this section, the term "qualifying
1055
offense" means any of the following:
1056
1. Kidnapping or attempted kidnapping under s. 787.01,
1057
false imprisonment of a child under the age of 13 under s.
1059
or (c).
1060
2. Murder or attempted murder under s. 782.04, attempted
1062
3. Aggravated battery or attempted aggravated battery under
1063
s. 784.045.
1064
4. Sexual battery or attempted sexual battery under s.
1065
794.011(2), (3), (4), or (8)(b) or (c).
1066
5. Lewd or lascivious battery or attempted lewd or
1067
lascivious battery under s. 800.04(4), lewd or lascivious
1068
molestation under s. 800.04(5)(b) or (c)2., lewd or lascivious
1069
conduct under s. 800.04(6)(b), or lewd or lascivious exhibition
1070
under s. 800.04(7)(b), or lewd or lascivious exhibition on
1072
6. Robbery or attempted robbery under s. 812.13, carjacking
1073
or attempted carjacking under s. 812.133, or home invasion
1074
robbery or attempted home invasion robbery under s. 812.135.
1075
7. Lewd or lascivious offense upon or in the presence of an
1076
elderly or disabled person or attempted lewd or lascivious
1077
offense upon or in the presence of an elderly or disabled person
1078
under s. 825.1025.
1079
8. Sexual performance by a child or attempted sexual
1080
performance by a child under s. 827.071.
1081
9. Computer pornography under s. 847.0135(2) or (3),
1082
transmission of child pornography under s. 847.0137, or selling
1083
or buying of minors under s. 847.0145.
1084
10. Poisoning food or water under s. 859.01.
1085
11. Abuse of a dead human body under s. 872.06.
1086
12. Any burglary offense or attempted burglary offense that
1087
is either a first degree felony or second degree felony under s.
1088
810.02(2) or (3).
1089
13. Arson or attempted arson under s. 806.01(1).
1090
14. Aggravated assault under s. 784.021.
1091
15. Aggravated stalking under s. 784.048(3), (4), (5), or
1092
(7).
1093
16. Aircraft piracy under s. 860.16.
1094
17. Unlawful throwing, placing, or discharging of a
1095
destructive device or bomb under s. 790.161(2), (3), or (4).
1096
18. Treason under s. 876.32.
1097
19. Any offense committed in another jurisdiction which
1098
would be an offense listed in this paragraph if that offense had
1099
been committed in this state.
1100
Section 29. Subsection (2) of section 948.101, Florida
1101
Statutes, is amended to read:
1102
948.101 Terms and conditions of community control and
1103
criminal quarantine community control.--
1104
(2) The enumeration of specific kinds of terms and
1105
conditions does not prevent the court from adding thereto any
1106
other terms or conditions that the court considers proper.
1107
However, the sentencing court may only impose a condition of
1108
supervision allowing an offender convicted of s. 794.011, s.
1110
another state if the order stipulates that it is contingent upon
1111
the approval of the receiving state interstate compact authority.
1112
The court may rescind or modify at any time the terms and
1113
conditions theretofore imposed by it upon the offender in
1114
community control. However, if the court withholds adjudication
1115
of guilt or imposes a period of incarceration as a condition of
1116
community control, the period may not exceed 364 days, and
1117
incarceration shall be restricted to a county facility, a
1118
probation and restitution center under the jurisdiction of the
1119
Department of Corrections, a probation program drug punishment
1120
phase I secure residential treatment institution, or a community
1121
residential facility owned or operated by any entity providing
1122
such services.
1123
Section 30. Subsections (1) and (2) of section 948.30,
1124
Florida Statutes, are amended to read:
1125
948.30 Additional terms and conditions of probation or
1126
community control for certain sex offenses.--Conditions imposed
1127
pursuant to this section do not require oral pronouncement at the
1128
time of sentencing and shall be considered standard conditions of
1129
probation or community control for offenders specified in this
1130
section.
1131
(1) Effective for probationers or community controllees
1132
whose crime was committed on or after October 1, 1995, and who
1133
are placed under supervision for violation of chapter 794, s.
1135
must impose the following conditions in addition to all other
1136
standard and special conditions imposed:
1137
(a) A mandatory curfew from 10 p.m. to 6 a.m. The court may
1138
designate another 8-hour period if the offender's employment
1139
precludes the above specified time, and the alternative is
1140
recommended by the Department of Corrections. If the court
1141
determines that imposing a curfew would endanger the victim, the
1142
court may consider alternative sanctions.
1143
(b) If the victim was under the age of 18, a prohibition on
1144
living within 1,000 feet of a school, day care center, park,
1145
playground, or other place where children regularly congregate,
1146
as prescribed by the court. The 1,000-foot distance shall be
1147
measured in a straight line from the offender's place of
1148
residence to the nearest boundary line of the school, day care
1149
center, park, playground, or other place where children
1150
congregate. The distance may not be measured by a pedestrian
1151
route or automobile route.
1152
(c) Active participation in and successful completion of a
1153
sex offender treatment program with qualified practitioners
1154
specifically trained to treat sex offenders, at the probationer's
1155
or community controllee's own expense. If a qualified
1156
practitioner is not available within a 50-mile radius of the
1157
probationer's or community controllee's residence, the offender
1158
shall participate in other appropriate therapy.
1159
(d) A prohibition on any contact with the victim, directly
1160
or indirectly, including through a third person, unless approved
1161
by the victim, the offender's therapist, and the sentencing
1162
court.
1163
(e) If the victim was under the age of 18, a prohibition on
1164
contact with a child under the age of 18 except as provided in
1165
this paragraph. The court may approve supervised contact with a
1166
child under the age of 18 if the approval is based upon a
1167
recommendation for contact issued by a qualified practitioner who
1168
is basing the recommendation on a risk assessment. Further, the
1169
sex offender must be currently enrolled in or have successfully
1170
completed a sex offender therapy program. The court may not grant
1171
supervised contact with a child if the contact is not recommended
1172
by a qualified practitioner and may deny supervised contact with
1173
a child at any time. When considering whether to approve
1174
supervised contact with a child, the court must review and
1175
consider the following:
1176
1. A risk assessment completed by a qualified practitioner.
1177
The qualified practitioner must prepare a written report that
1178
must include the findings of the assessment and address each of
1179
the following components:
1180
a. The sex offender's current legal status;
1181
b. The sex offender's history of adult charges with
1182
apparent sexual motivation;
1183
c. The sex offender's history of adult charges without
1184
apparent sexual motivation;
1185
d. The sex offender's history of juvenile charges, whenever
1186
available;
1187
e. The sex offender's offender treatment history, including
1188
consultations with the sex offender's treating, or most recent
1189
treating, therapist;
1190
f. The sex offender's current mental status;
1191
g. The sex offender's mental health and substance abuse
1192
treatment history as provided by the Department of Corrections;
1193
h. The sex offender's personal, social, educational, and
1194
work history;
1195
i. The results of current psychological testing of the sex
1196
offender if determined necessary by the qualified practitioner;
1197
j. A description of the proposed contact, including the
1198
location, frequency, duration, and supervisory arrangement;
1199
k. The child's preference and relative comfort level with
1200
the proposed contact, when age appropriate;
1201
l. The parent's or legal guardian's preference regarding
1202
the proposed contact; and
1203
m. The qualified practitioner's opinion, along with the
1204
basis for that opinion, as to whether the proposed contact would
1205
likely pose significant risk of emotional or physical harm to the
1206
child.
1207
1208
The written report of the assessment must be given to the court;
1209
2. A recommendation made as a part of the risk assessment
1210
report as to whether supervised contact with the child should be
1211
approved;
1212
3. A written consent signed by the child's parent or legal
1213
guardian, if the parent or legal guardian is not the sex
1214
offender, agreeing to the sex offender having supervised contact
1215
with the child after receiving full disclosure of the sex
1216
offender's present legal status, past criminal history, and the
1217
results of the risk assessment. The court may not approve contact
1218
with the child if the parent or legal guardian refuses to give
1219
written consent for supervised contact;
1220
4. A safety plan prepared by the qualified practitioner,
1221
who provides treatment to the offender, in collaboration with the
1222
sex offender, the child's parent or legal guardian, if the parent
1223
or legal guardian is not the sex offender, and the child, when
1224
age appropriate, which details the acceptable conditions of
1225
contact between the sex offender and the child. The safety plan
1226
must be reviewed and approved by the court; and
1227
5. Evidence that the child's parent or legal guardian
1228
understands the need for and agrees to the safety plan and has
1229
agreed to provide, or to designate another adult to provide,
1230
constant supervision any time the child is in contact with the
1231
offender.
1232
1233
The court may not appoint a person to conduct a risk assessment
1234
and may not accept a risk assessment from a person who has not
1235
demonstrated to the court that he or she has met the requirements
1236
of a qualified practitioner as defined in this section.
1237
(f) If the victim was under age 18, a prohibition on
1238
working for pay or as a volunteer at any place where children
1239
regularly congregate, including, but not limited to, schools, day
1240
care centers, parks, playgrounds, pet stores, libraries, zoos,
1241
theme parks, and malls.
1242
(g) Unless otherwise indicated in the treatment plan
1243
provided by the sexual offender treatment program, a prohibition
1244
on viewing, accessing, owning, or possessing any obscene,
1245
pornographic, or sexually stimulating visual or auditory
1246
material, including telephone, electronic media, computer
1247
programs, or computer services that are relevant to the
1248
offender's deviant behavior pattern.
1249
(h) Effective for probationers and community controllees
1250
whose crime is committed on or after July 1, 2005, a prohibition
1251
on accessing the Internet or other computer services until the
1252
offender's sex offender treatment program, after a risk
1253
assessment is completed, approves and implements a safety plan
1254
for the offender's accessing or using the Internet or other
1255
computer services.
1256
(i) A requirement that the probationer or community
1257
controllee must submit a specimen of blood or other approved
1258
biological specimen to the Department of Law Enforcement to be
1259
registered with the DNA data bank.
1260
(j) A requirement that the probationer or community
1261
controllee make restitution to the victim, as ordered by the
1262
court under s. 775.089, for all necessary medical and related
1263
professional services relating to physical, psychiatric, and
1264
psychological care.
1265
(k) Submission to a warrantless search by the community
1266
control or probation officer of the probationer's or community
1267
controllee's person, residence, or vehicle.
1268
(2) Effective for a probationer or community controllee
1269
whose crime was committed on or after October 1, 1997, and who is
1270
placed on community control or sex offender probation for a
1272
or s. 847.0145, in addition to any other provision of this
1273
section, the court must impose the following conditions of
1274
probation or community control:
1275
(a) As part of a treatment program, participation at least
1276
annually in polygraph examinations to obtain information
1277
necessary for risk management and treatment and to reduce the sex
1278
offender's denial mechanisms. A polygraph examination must be
1279
conducted by a polygrapher trained specifically in the use of the
1280
polygraph for the monitoring of sex offenders, where available,
1281
and shall be paid for by the sex offender. The results of the
1282
polygraph examination shall not be used as evidence in court to
1283
prove that a violation of community supervision has occurred.
1284
(b) Maintenance of a driving log and a prohibition against
1285
driving a motor vehicle alone without the prior approval of the
1286
supervising officer.
1287
(c) A prohibition against obtaining or using a post office
1288
box without the prior approval of the supervising officer.
1289
(d) If there was sexual contact, a submission to, at the
1290
probationer's or community controllee's expense, an HIV test with
1291
the results to be released to the victim or the victim's parent
1292
or guardian.
1293
(e) Electronic monitoring when deemed necessary by the
1294
community control or probation officer and his or her supervisor,
1295
and ordered by the court at the recommendation of the Department
1296
of Corrections.
1297
Section 31. Subsection (1) of section 948.31, Florida
1298
Statutes, is amended to read:
1299
948.31 Diagnosis, evaluation, and treatment of offenders
1300
placed on probation or community control for certain sex offenses
1301
or child exploitation.--The court shall require a diagnosis and
1302
evaluation to determine the need of a probationer or offender in
1303
community control for treatment. If the court determines that a
1304
need therefor is established by such diagnosis and evaluation
1305
process, the court shall require outpatient counseling as a term
1306
or condition of probation or community control for any person who
1307
was found guilty of any of the following, or whose plea of guilty
1308
or nolo contendere to any of the following was accepted by the
1309
court:
1310
(1) Lewd or lascivious battery, lewd or lascivious
1311
molestation, lewd or lascivious conduct, or lewd or lascivious
1313
1314
Such counseling shall be required to be obtained from a community
1315
mental health center, a recognized social service agency
1316
providing mental health services, or a private mental health
1317
professional or through other professional counseling. The plan
1318
for counseling for the individual shall be provided to the court
1319
for review.
1320
Section 32. This act shall take effect October 1, 2008.
CODING: Words stricken are deletions; words underlined are additions.