Florida Senate - 2008 CS for CS for CS for SB 1442
By the Committees on Criminal and Civil Justice Appropriations; Judiciary; Criminal Justice; and Senators Dockery and Baker
604-07690-08 20081442c3
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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. 796.035, F.S.; revising provisions relating to
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the sale or transfer of minors into sex trafficking or
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prostitution; amending s. 800.04, F.S., relating to lewd
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or lascivious exhibition, to conform to changes made by
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the act; amending s. 847.0135, F.S.; conforming provisions
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to 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 "identified 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. Section 796.035, Florida Statutes, is amended to
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read:
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796.035 Selling or buying of minors into sex trafficking or
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prostitution; penalties.--Any parent, legal guardian, or other
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person having custody or control of a minor who sells or
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otherwise transfers custody or control of such minor, or offers
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to sell or otherwise transfer custody of such minor, with
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knowledge that, as a consequence of the sale or transfer, force,
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fraud, or coercion will be used to cause the minor will to engage
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in prostitution, perform naked for compensation, or otherwise
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participate in the trade of sex trafficking, commits a felony of
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the first degree, punishable as provided in s. 775.082, s.
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Section 3. 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 4. 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 5. 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 or movies of child pornography
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shall:
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(a) Provide such images or movies to the law enforcement
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agency representative assigned to the Child Victim Identification
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Program at the National Center for Missing and Exploited
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Children, as required by the center's guidelines.
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(b) Request the law enforcement agency contact information
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from the Child Victim Identification Program for any images or
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movies recovered which contain an identified victim of child
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pornography as defined in s. 960.03.
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(c) Provide case information to the Child Victim
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Identification Program, as required by the National Center for
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Missing and Exploited Children guidelines, in any case where the
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law enforcement officer identifies a previously unidentified
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victim of child pornography, as defined in s. 960.03.
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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 Child Victim Identification Program at the
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National Center for Missing and Exploited Children, for any
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images or movies involved in the case which contain the depiction
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of an identified victim of child pornography as defined in s.
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(3) In every filed case involving an identified victim of
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child pornography, as defined in s. 960.03, the prosecuting
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agency shall enter the following information into the Victims in
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Child Pornography Tracking Repeat Exploitation database
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maintained by 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 6. 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, where any portion of such abuse was
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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 or movies, may bring an
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action in an appropriate state court against the producer,
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promoter, or possessor of such images or movies, regardless of
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whether the victim is now an adult. In any action brought under
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this section, a prevailing plaintiff shall recover the actual
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damages such person sustained and the cost of the suit, including
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reasonable attorney's fees. Any victim who is awarded damages
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under this section shall be deemed to have sustained damages of
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at least $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 younger than 18, within 3 years
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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 shall go to the victim, and the
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Office of the Attorney General may seek reasonable attorney's
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fees and costs as authorized under this section.
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Section 7. 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) "Identified victim of child pornography" means any
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person who, while under the age of 18, is depicted in any image
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or movie of child pornography and who is identified through a
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report generated by a law enforcement agency and provided to the
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National Center for Missing and Exploited Children's Child Victim
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Identification Program.
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(14)(13) "Victim" means:
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(a) A person who suffers personal physical injury or death
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as a direct result of a crime;
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(b) A person younger less than 18 16 years of age who was
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present at the scene of a crime, saw or heard the crime, and
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suffered a psychiatric or psychological injury because of the
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crime, but who 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 8. 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 younger 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 younger than age 18, was depicted
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in any image or movie, regardless of length, of child pornography
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as defined in s. 847.001, 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 an identified victim of child pornography,
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who suffers psychiatric or psychological injury as a direct
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result of the crime, and who does not otherwise sustain a
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personal injury 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 9. 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 10. Subsection (2) of section 92.565, Florida
332
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 11. 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 12. 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 13. 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
408
United States, any possession or territory of the United States,
409
or any foreign jurisdiction, following incarceration for an
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offense for which the sentence is punishable by more than 1 year
411
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
419
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
422
in this state.
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3. If the state attorney determines that a defendant is a
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prison releasee reoffender as defined in subparagraph 1., the
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state attorney may seek to have the court sentence the defendant
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as a prison releasee reoffender. Upon proof from the state
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attorney that establishes by a preponderance of the evidence that
428
a defendant is a prison releasee reoffender as defined in this
429
section, such defendant is not eligible for sentencing under the
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sentencing guidelines and must be sentenced as follows:
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a. For a felony punishable by life, by a term of
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imprisonment for life;
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b. For a felony of the first degree, by a term of
434
imprisonment of 30 years;
435
c. For a felony of the second degree, by a term of
436
imprisonment of 15 years; and
437
d. For a felony of the third degree, by a term of
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imprisonment of 5 years.
439
Section 14. Paragraph (d) of subsection (1) of section
440
775.084, Florida Statutes, is amended to read:
441
775.084 Violent career criminals; habitual felony offenders
442
and habitual violent felony offenders; three-time violent felony
443
offenders; definitions; procedure; enhanced penalties or
444
mandatory minimum prison terms.--
445
(1) As used in this act:
446
(d) "Violent career criminal" means a defendant for whom
447
the court must impose imprisonment pursuant to paragraph (4)(d),
448
if it finds that:
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1. The defendant has previously been convicted as an adult
450
three or more times for an offense in this state or other
451
qualified offense that is:
452
a. Any forcible felony, as described in s. 776.08;
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b. Aggravated stalking, as described in s. 784.048(3) and
454
(4);
455
c. Aggravated child abuse, as described in s. 827.03(2);
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d. Aggravated abuse of an elderly person or disabled adult,
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as described in s. 825.102(2);
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e. Lewd or lascivious battery, lewd or lascivious
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molestation, lewd or lascivious conduct, or lewd or lascivious
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f. Escape, as described in s. 944.40; or
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g. A felony violation of chapter 790 involving the use or
463
possession of a firearm.
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2. The defendant has been incarcerated in a state prison or
465
a federal prison.
466
3. The primary felony offense for which the defendant is to
467
be sentenced is a felony enumerated in subparagraph 1. and was
468
committed on or after October 1, 1995, and:
469
a. While the defendant was serving a prison sentence or
470
other sentence, or court-ordered or lawfully imposed supervision
471
that is imposed as a result of a prior conviction for an
472
enumerated felony; or
473
b. Within 5 years after the conviction of the last prior
474
enumerated felony, or within 5 years after the defendant's
475
release from a prison sentence, probation, community control,
476
control release, conditional release, parole, or court-ordered or
477
lawfully imposed supervision or other sentence that is imposed as
478
a result of a prior conviction for an enumerated felony,
479
whichever is later.
480
4. The defendant has not received a pardon for any felony
481
or other qualified offense that is necessary for the operation of
482
this paragraph.
483
5. A conviction of a felony or other qualified offense
484
necessary to the operation of this paragraph has not been set
485
aside in any postconviction proceeding.
486
Section 15. Paragraph (a) of subsection (13) and paragraph
487
(a) of subsection (16) of section 775.15, Florida Statutes, are
488
amended to read:
489
775.15 Time limitations; general time limitations;
490
exceptions.--
491
(13)(a) If the victim of a violation of s. 794.011, former
493
847.0135(5) is under the age of 18, the applicable period of
494
limitation, if any, does not begin to run until the victim has
495
reached the age of 18 or the violation is reported to a law
496
enforcement agency or other governmental agency, whichever occurs
497
earlier. Such law enforcement agency or other governmental agency
498
shall promptly report such allegation to the state attorney for
499
the judicial circuit in which the alleged violation occurred. If
500
the offense is a first or second degree felony violation of s.
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794.011, and the offense is reported within 72 hours after its
502
commission, the prosecution for such offense may be commenced at
503
any time. This paragraph applies to any such offense except an
504
offense the prosecution of which would have been barred by
505
subsection (2) on or before December 31, 1984.
506
(16)(a) In addition to the time periods prescribed in this
507
section, a prosecution for any of the following offenses may be
508
commenced at any time after the date on which the identity of the
509
accused is established, or should have been established by the
510
exercise of due diligence, through the analysis of
511
deoxyribonucleic acid (DNA) evidence, if a sufficient portion of
512
the evidence collected at the time of the original investigation
513
and tested for DNA is preserved and available for testing by the
514
accused:
515
1. Aggravated battery or any felony battery offense under
516
chapter 784.
517
2. Kidnapping under s. 787.01 or false imprisonment under
518
s. 787.02.
519
3. An offense of sexual battery under chapter 794.
520
4. A lewd or lascivious offense under s. 800.04, or s.
522
5. A burglary offense under s. 810.02.
524
525
7. Carjacking under s. 812.133.
526
8. Aggravated child abuse under s. 827.03.
527
Section 16. Paragraph (a) of subsection (4) and paragraph
528
(b) of subsection (10) of section 775.21, Florida Statutes, are
529
amended to read:
530
775.21 The Florida Sexual Predators Act.--
531
(4) SEXUAL PREDATOR CRITERIA.--
532
(a) For a current offense committed on or after October 1,
533
1993, upon conviction, an offender shall be designated as a
534
"sexual predator" under subsection (5), and subject to
535
registration under subsection (6) and community and public
536
notification under subsection (7) if:
537
1. The felony is:
538
a. A capital, life, or first-degree felony violation, or
540
is a minor and the defendant is not the victim's parent or
542
violation of a similar law of another jurisdiction; or
543
b. Any felony violation, or any attempt thereof, of s.
545
minor and the defendant is not the victim's parent or guardian;
549
similar law of another jurisdiction, and the offender has
550
previously been convicted of or found to have committed, or has
551
pled nolo contendere or guilty to, regardless of adjudication,
553
the victim is a minor and the defendant is not the victim's
558
another jurisdiction;
559
2. The offender has not received a pardon for any felony or
560
similar law of another jurisdiction that is necessary for the
561
operation of this paragraph; and
562
3. A conviction of a felony or similar law of another
563
jurisdiction necessary to the operation of this paragraph has not
564
been set aside in any postconviction proceeding.
565
(10) PENALTIES.--
566
(b) A sexual predator who has been convicted of or found to
567
have committed, or has pled nolo contendere or guilty to,
568
regardless of adjudication, any violation, or attempted
570
the victim is a minor and the defendant is not the victim's
574
violation of a similar law of another jurisdiction when the
575
victim of the offense was a minor, and who works, whether for
576
compensation or as a volunteer, at any business, school, day care
577
center, park, playground, or other place where children regularly
578
congregate, commits a felony of the third degree, punishable as
580
Section 17. Subsections (7) and (8) of section 784.048,
581
Florida Statutes, are amended to read:
582
784.048 Stalking; definitions; penalties.--
583
(7) Any person who, after having been sentenced for a
585
prohibited from contacting the victim of the offense under s.
586
921.244, willfully, maliciously, and repeatedly follows,
587
harasses, or cyberstalks the victim commits the offense of
588
aggravated stalking, a felony of the third degree, punishable as
590
(8) The punishment imposed under this section shall run
591
consecutive to any former sentence imposed for a conviction for
593
Section 18. Paragraph (a) of subsection (3) of section
594
787.01, Florida Statutes, is amended to read:
595
787.01 Kidnapping; kidnapping of child under age 13,
596
aggravating circumstances.--
597
(3)(a) A person who commits the offense of kidnapping upon
598
a child under the age of 13 and who, in the course of committing
599
the offense, commits one or more of the following:
600
1. Aggravated child abuse, as defined in s. 827.03;
601
2. Sexual battery, as defined in chapter 794, against the
602
child;
603
3. Lewd or lascivious battery, lewd or lascivious
604
molestation, lewd or lascivious conduct, or lewd or lascivious
607
prostitution, upon the child; or
608
5. Exploitation of the child or allowing the child to be
609
exploited, in violation of s. 450.151,
610
611
commits a life felony, punishable as provided in s. 775.082, s.
613
Section 19. Paragraph (a) of subsection (3) of section
614
787.02, Florida Statutes, is amended to read:
615
787.02 False imprisonment; false imprisonment of child
616
under age 13, aggravating circumstances.--
617
(3)(a) A person who commits the offense of false
618
imprisonment upon a child under the age of 13 and who, in the
619
course of committing the offense, commits any offense enumerated
620
in subparagraphs 1.-5., commits a felony of the first degree,
621
punishable by imprisonment for a term of years not exceeding life
623
1. Aggravated child abuse, as defined in s. 827.03;
624
2. Sexual battery, as defined in chapter 794, against the
625
child;
626
3. Lewd or lascivious battery, lewd or lascivious
627
molestation, lewd or lascivious conduct, or lewd or lascivious
630
prostitution, upon the child; or
631
5. Exploitation of the child or allowing the child to be
632
exploited, in violation of s. 450.151.
633
Section 20. Paragraph (c) of subsection (2) of section
634
787.025, Florida Statutes, is amended to read:
635
787.025 Luring or enticing a child.--
636
(2)
637
(c) A person 18 years of age or older who, having been
638
previously convicted of a violation of chapter 794, or s. 800.04,
639
or s. 847.0135(5), or a violation of a similar law of another
640
jurisdiction, intentionally lures or entices, or attempts to lure
641
or entice, a child under the age of 12 into a structure,
642
dwelling, or conveyance for other than a lawful purpose commits a
643
felony of the third degree, punishable as provided in s. 775.082,
645
Section 21. Section 794.065, Florida Statutes, is amended
646
to read:
647
794.065 Unlawful place of residence for persons convicted
648
of certain sex offenses.--
649
(1) It is unlawful for any person who has been convicted of
651
or s. 847.0145, regardless of whether adjudication has been
652
withheld, in which the victim of the offense was less than 16
653
years of age, to reside within 1,000 feet of any school, day care
654
center, park, or playground. A person who violates this section
657
first degree or higher commits a felony of the third degree,
659
violates this section and whose conviction under s. 794.011, s.
661
as a felony of the second or third degree commits a misdemeanor
662
of the first degree, punishable as provided in s. 775.082 or s.
663
664
(2) This section applies to any person convicted of a
666
or s. 847.0145 for offenses that occur on or after October 1,
667
2004.
668
Section 22. Section 914.16, Florida Statutes, is amended to
669
read:
670
914.16 Child abuse and sexual abuse of victims under age 16
671
or persons with mental retardation; limits on interviews.--The
672
chief judge of each judicial circuit, after consultation with the
673
state attorney and the public defender for the judicial circuit,
674
the appropriate chief law enforcement officer, and any other
675
person deemed appropriate by the chief judge, shall provide by
676
order reasonable limits on the number of interviews that a victim
678
847.0135(5) who is under 16 years of age or a victim of a
680
is a person with mental retardation as defined in s. 393.063 must
681
submit to for law enforcement or discovery purposes. The order
682
shall, to the extent possible, protect the victim from the
683
psychological damage of repeated interrogations while preserving
684
the rights of the public, the victim, and the person charged with
685
the violation.
686
Section 23. Paragraphs (d) and (e) of subsection (3) of
687
section 921.0022, Florida Statutes, are amended to read:
688
921.0022 Criminal Punishment Code; offense severity ranking
689
chart.--
690
(3) OFFENSE SEVERITY RANKING CHART
691
(d) LEVEL 4
692
| FloridaStatute | FelonyDegree | Description |
693
| 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. |
694
| 499.0051(1) | 3rd | Failure to maintain or deliver pedigree papers. |
695
| 499.0051(2) | 3rd | Failure to authenticate pedigree papers. |
696
| 499.0051(6) | 2nd | Sale or delivery, or possession with intent to sell, contraband legend drugs. |
697
| 784.07(2)(b) | 3rd | Battery of law enforcement officer, firefighter, intake officer, etc. |
698
| 784.074(1)(c) | 3rd | Battery of sexually violent predators facility staff. |
699
| 784.075 | 3rd | Battery on detention or commitment facility staff. |
700
| 784.078 | 3rd | Battery of facility employee by throwing, tossing, or expelling certain fluids or materials. |
701
| 784.08(2)(c) | 3rd | Battery on a person 65 years of age or older. |
702
| 784.081(3) | 3rd | Battery on specified official or employee. |
703
| 784.082(3) | 3rd | Battery by detained person on visitor or other detainee. |
704
| 784.083(3) | 3rd | Battery on code inspector. |
705
| 784.085 | 3rd | Battery of child by throwing, tossing, projecting, or expelling certain fluids or materials. |
706
| 787.03(1) | 3rd | Interference with custody; wrongly takes minor from appointed guardian. |
707
| 787.04(2) | 3rd | Take, entice, or remove child beyond state limits with criminal intent pending custody proceedings. |
708
| 787.04(3) | 3rd | Carrying child beyond state lines with criminal intent to avoid producing child at custody hearing or delivering to designated person. |
709
| 790.115(1) | 3rd | Exhibiting firearm or weapon within 1,000 feet of a school. |
710
| 790.115(2)(b) | 3rd | Possessing electric weapon or device, destructive device, or other weapon on school property. |
711
| 790.115(2)(c) | 3rd | Possessing firearm on school property. |
712
| 800.04(7)(c)(d) | 3rd | Lewd or lascivious exhibition; offender less than 18 years. |
713
| 810.02(4)(a) | 3rd | Burglary, or attempted burglary, of an unoccupied structure; unarmed; no assault or battery. |
714
| 810.02(4)(b) | 3rd | Burglary, or attempted burglary, of an unoccupied conveyance; unarmed; no assault or battery. |
715
| 810.06 | 3rd | Burglary; possession of tools. |
716
| 810.08(2)(c) | 3rd | Trespass on property, armed with firearm or dangerous weapon. |
717
| 812.014(2)(c)3. | 3rd | Grand theft, 3rd degree $10,000 or more but less than $20,000. |
718
| 812.014(2)(c)4.-10. | 3rd | Grand theft, 3rd degree, a will, firearm, motor vehicle, livestock, etc. |
719
| 812.0195(2) | 3rd | Dealing in stolen property by use of the Internet; property stolen $300 or more. |
720
| 817.563(1) | 3rd | Sell or deliver substance other than controlled substance agreed upon, excluding s. 893.03(5) drugs. |
721
| 817.568(2)(a) | 3rd | Fraudulent use of personal identification information. |
722
| 817.625(2)(a) | 3rd | Fraudulent use of scanning device or reencoder. |
723
| 828.125(1) | 2nd | Kill, maim, or cause great bodily harm or permanent breeding disability to any registered horse or cattle. |
724
| 837.02(1) | 3rd | Perjury in official proceedings. |
725
| 837.021(1) | 3rd | Make contradictory statements in official proceedings. |
726
| 838.022 | 3rd | Official misconduct. |
727
| 839.13(2)(a) | 3rd | Falsifying records of an individual in the care and custody of a state agency. |
728
| 839.13(2)(c) | 3rd | Falsifying records of the Department of Children and Family Services. |
729
| 843.021 | 3rd | Possession of a concealed handcuff key by a person in custody. |
730
| 843.025 | 3rd | Deprive law enforcement, correctional, or correctional probation officer of means of protection or communication. |
731
| 843.15(1)(a) | 3rd | Failure to appear while on bail for felony (bond estreature or bond jumping). |
732
| 847.0135(5)(c) | 3rd | Lewd or lascivious exhibition using computer; offender less than 18 years. |
733
| 874.05(1) | 3rd | Encouraging or recruiting another to join a criminal street gang. |
734
| 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). |
735
| 914.14(2) | 3rd | Witnesses accepting bribes. |
736
| 914.22(1) | 3rd | Force, threaten, etc., witness, victim, or informant. |
737
| 914.23(2) | 3rd | Retaliation against a witness, victim, or informant, no bodily injury. |
738
| 918.12 | 3rd | Tampering with jurors. |
739
| 934.215 | 3rd | Use of two-way communications device to facilitate commission of a crime. |
740
741
(e) LEVEL 5
742
| FloridaStatute | FelonyDegree | Description |
743
| 316.027(1)(a) | 3rd | Accidents involving personal injuries, failure to stop; leaving scene. |
744
| 316.1935(4)(a) | 2nd | Aggravated fleeing or eluding. |
745
| 322.34(6) | 3rd | Careless operation of motor vehicle with suspended license, resulting in death or serious bodily injury. |
746
| 327.30(5) | 3rd | Vessel accidents involving personal injury; leaving scene. |
747
| 381.0041(11)(b) | 3rd | Donate blood, plasma, or organs knowing HIV positive. |
748
| 440.10(1)(g) | 2nd | Failure to obtain workers' compensation coverage. |
749
| 440.105(5) | 2nd | Unlawful solicitation for the purpose of making workers' compensation claims. |
750
| 440.381(2) | 2nd | Submission of false, misleading, or incomplete information with the purpose of avoiding or reducing workers' compensation premiums. |
751
| 624.401(4)(b)2. | 2nd | Transacting insurance without a certificate or authority; premium collected $20,000 or more but less than $100,000. |
752
| 626.902(1)(c) | 2nd | Representing an unauthorized insurer; repeat offender. |
753
| 790.01(2) | 3rd | Carrying a concealed firearm. |
754
| 790.162 | 2nd | Threat to throw or discharge destructive device. |
755
| 790.163(1) | 2nd | False report of deadly explosive or weapon of mass destruction. |
756
| 790.221(1) | 2nd | Possession of short-barreled shotgun or machine gun. |
757
| 790.23 | 2nd | Felons in possession of firearms, ammunition, or electronic weapons or devices. |
758
| 800.04(6)(c) | 3rd | Lewd or lascivious conduct; offender less than 18 years. |
759
| 800.04(7)(b)(c) | 2nd | Lewd or lascivious exhibition; offender 18 years or older. |
760
| 806.111(1) | 3rd | Possess, manufacture, or dispense fire bomb with intent to damage any structure or property. |
761
| 812.0145(2)(b) | 2nd | Theft from person 65 years of age or older; $10,000 or more but less than $50,000. |
762
| 812.015(8) | 3rd | Retail theft; property stolen is valued at $300 or more and one or more specified acts. |
763
| 812.019(1) | 2nd | Stolen property; dealing in or trafficking in. |
764
| 812.131(2)(b) | 3rd | Robbery by sudden snatching. |
765
| 812.16(2) | 3rd | Owning, operating, or conducting a chop shop. |
766
| 817.034(4)(a)2. | 2nd | Communications fraud, value $20,000 to $50,000. |
767
| 817.234(11)(b) | 2nd | Insurance fraud; property value $20,000 or more but less than $100,000. |
768
| 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. |
769
| 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. |
770
| 817.625(2)(b) | 2nd | Second or subsequent fraudulent use of scanning device or reencoder. |
771
| 825.1025(4) | 3rd | Lewd or lascivious exhibition in the presence of an elderly person or disabled adult. |
772
| 827.071(4) | 2nd | Possess with intent to promote any photographic material, motion picture, etc., which includes sexual conduct by a child. |
773
| 827.071(5) | 3rd | Possess any photographic material, motion picture, etc., which includes sexual conduct by a child. |
774
| 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. |
775
| 843.01 | 3rd | Resist officer with violence to person; resist arrest with violence. |
776
| 847.0135(5)(b) | 2nd | Lewd or lascivious exhibition using computer; offender 18 years or older. |
777
| 847.0137(2)&(3) | 3rd | Transmission of pornography by electronic device or equipment. |
778
| 847.0138(2)&(3) | 3rd | Transmission of material harmful to minors to a minor by electronic device or equipment. |
779
| 874.05(2) | 2nd | Encouraging or recruiting another to join a criminal street gang; second or subsequent offense. |
780
| 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). |
781
| 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. |
782
| 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. |
783
| 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. |
784
| 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. |
785
| 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). |
786
787
Section 24. Subsections (1) and (3) of section 921.244,
788
Florida Statutes, are amended to read:
789
921.244 Order of no contact; penalties.--
790
(1) At the time of sentencing an offender convicted of a
792
court shall order that the offender be prohibited from having any
793
contact with the victim, directly or indirectly, including
794
through a third person, for the duration of the sentence imposed.
795
The court may reconsider the order upon the request of the victim
796
if the request is made at any time after the victim has attained
797
18 years of age. In considering the request, the court shall
798
conduct an evidentiary hearing to determine whether a change of
799
circumstances has occurred which warrants a change in the court
800
order prohibiting contact and whether it is in the best interest
801
of the victim that the court order be modified or rescinded.
802
(3) The punishment imposed under this section shall run
803
consecutive to any former sentence imposed for a conviction for
805
Section 25. Subsection (1) of section 938.10, Florida
806
Statutes, is amended to read:
807
938.10 Additional court cost imposed in cases of certain
808
crimes against minors.--
809
(1) If a person pleads guilty or nolo contendere to, or is
810
found guilty of, regardless of adjudication, any offense against
811
a minor in violation of s. 784.085, chapter 787, chapter 794, s.
813
s. 985.701, the court shall impose a court cost of $101 against
814
the offender in addition to any other cost or penalty required by
815
law.
816
Section 26. Subsections (1), (2), and (4) of section
817
943.04354, Florida Statutes, are amended to read:
818
943.04354 Removal of the requirement to register as a
819
sexual offender or sexual predator in special circumstances.--
820
(1) For purposes of this section, a person shall be
821
considered for removal of the requirement to register as a sexual
822
offender or sexual predator only if the person:
823
(a) Was or will be convicted or adjudicated delinquent of a
826
847.0135(5) for which adjudication of guilt was or will be
827
withheld, and the person does not have any other conviction,
828
adjudication of delinquency, or withhold of adjudication of guilt
830
(b) Is required to register as a sexual offender or sexual
831
predator solely on the basis of this violation; and
832
(c) Is not more than 4 years older than the victim of this
833
violation who was 14 years of age or older but not more than 17
834
years of age at the time the person committed this violation.
835
(2) If a person meets the criteria in subsection (1) and
837
committed on or after July 1, 2007, the person may move the court
838
that will sentence or dispose of this violation to remove the
839
requirement that the person register as a sexual offender or
840
sexual predator. The person must allege in the motion that he or
841
she meets the criteria in subsection (1) and that removal of the
842
registration requirement will not conflict with federal law. The
843
state attorney must be given notice of the motion at least 21
844
days before the date of sentencing or disposition of this
845
violation and may present evidence in opposition to the requested
846
relief or may otherwise demonstrate why the motion should be
847
denied. At sentencing or disposition of this violation, the court
848
shall rule on this motion and, if the court determines the person
849
meets the criteria in subsection (1) and the removal of the
850
registration requirement will not conflict with federal law, it
851
may grant the motion and order the removal of the registration
852
requirement. If the court denies the motion, the person is not
853
authorized under this section to petition for removal of the
854
registration requirement.
855
(4) If a person provides to the Department of Law
856
Enforcement a certified copy of the court's order removing the
857
requirement that the person register as a sexual offender or
859
s. 847.0135(5), the registration requirement will not apply to
860
the person and the department shall remove all information about
861
the person from the public registry of sexual offenders and
862
sexual predators maintained by the department. However, the
863
removal of this information from the public registry does not
864
mean that the public is denied access to information about the
865
person's criminal history or record that is otherwise available
866
as a public record.
867
Section 27. Subsection (7) of section 947.1405, Florida
868
Statutes, is amended to read:
869
947.1405 Conditional release program.--
870
(7)(a) Any inmate who is convicted of a crime committed on
871
or after October 1, 1995, or who has been previously convicted of
872
a crime committed on or after October 1, 1995, in violation of
874
847.0145, and is subject to conditional release supervision,
875
shall have, in addition to any other conditions imposed, the
876
following special conditions imposed by the commission:
877
1. A mandatory curfew from 10 p.m. to 6 a.m. The commission
878
may designate another 8-hour period if the offender's employment
879
precludes the above specified time, and such alternative is
880
recommended by the Department of Corrections. If the commission
881
determines that imposing a curfew would endanger the victim, the
882
commission may consider alternative sanctions.
883
2. If the victim was under the age of 18, a prohibition on
884
living within 1,000 feet of a school, day care center, park,
885
playground, designated public school bus stop, or other place
886
where children regularly congregate. A releasee who is subject to
887
this subparagraph may not relocate to a residence that is within
888
1,000 feet of a public school bus stop. Beginning October 1,
889
2004, the commission or the department may not approve a
890
residence that is located within 1,000 feet of a school, day care
891
center, park, playground, designated school bus stop, or other
892
place where children regularly congregate for any releasee who is
893
subject to this subparagraph. On October 1, 2004, the department
894
shall notify each affected school district of the location of the
895
residence of a releasee 30 days prior to release and thereafter,
896
if the releasee relocates to a new residence, shall notify any
897
affected school district of the residence of the releasee within
898
30 days after relocation. If, on October 1, 2004, any public
899
school bus stop is located within 1,000 feet of the existing
900
residence of such releasee, the district school board shall
901
relocate that school bus stop. Beginning October 1, 2004, a
902
district school board may not establish or relocate a public
903
school bus stop within 1,000 feet of the residence of a releasee
904
who is subject to this subparagraph. The failure of the district
905
school board to comply with this subparagraph shall not result in
906
a violation of conditional release supervision.
907
3. Active participation in and successful completion of a
908
sex offender treatment program with qualified practitioners
909
specifically trained to treat sex offenders, at the releasee's
910
own expense. If a qualified practitioner is not available within
911
a 50-mile radius of the releasee's residence, the offender shall
912
participate in other appropriate therapy.
913
4. A prohibition on any contact with the victim, directly
914
or indirectly, including through a third person, unless approved
915
by the victim, the offender's therapist, and the sentencing
916
court.
917
5. If the victim was under the age of 18, a prohibition
918
against contact with children under the age of 18 without review
919
and approval by the commission. The commission may approve
920
supervised contact with a child under the age of 18 if the
921
approval is based upon a recommendation for contact issued by a
922
qualified practitioner who is basing the recommendation on a risk
923
assessment. Further, the sex offender must be currently enrolled
924
in or have successfully completed a sex offender therapy program.
925
The commission may not grant supervised contact with a child if
926
the contact is not recommended by a qualified practitioner and
927
may deny supervised contact with a child at any time. When
928
considering whether to approve supervised contact with a child,
929
the commission must review and consider the following:
930
a. A risk assessment completed by a qualified practitioner.
931
The qualified practitioner must prepare a written report that
932
must include the findings of the assessment and address each of
933
the following components:
934
(I) The sex offender's current legal status;
935
(II) The sex offender's history of adult charges with
936
apparent sexual motivation;
937
(III) The sex offender's history of adult charges without
938
apparent sexual motivation;
939
(IV) The sex offender's history of juvenile charges,
940
whenever available;
941
(V) The sex offender's offender treatment history,
942
including a consultation from the sex offender's treating, or
943
most recent treating, therapist;
944
(VI) The sex offender's current mental status;
945
(VII) The sex offender's mental health and substance abuse
946
history as provided by the Department of Corrections;
947
(VIII) The sex offender's personal, social, educational,
948
and work history;
949
(IX) The results of current psychological testing of the
950
sex offender if determined necessary by the qualified
951
practitioner;
952
(X) A description of the proposed contact, including the
953
location, frequency, duration, and supervisory arrangement;
954
(XI) The child's preference and relative comfort level with
955
the proposed contact, when age-appropriate;
956
(XII) The parent's or legal guardian's preference regarding
957
the proposed contact; and
958
(XIII) The qualified practitioner's opinion, along with the
959
basis for that opinion, as to whether the proposed contact would
960
likely pose significant risk of emotional or physical harm to the
961
child.
962
963
The written report of the assessment must be given to the
964
commission.
965
b. A recommendation made as a part of the risk-assessment
966
report as to whether supervised contact with the child should be
967
approved;
968
c. A written consent signed by the child's parent or legal
969
guardian, if the parent or legal guardian is not the sex
970
offender, agreeing to the sex offender having supervised contact
971
with the child after receiving full disclosure of the sex
972
offender's present legal status, past criminal history, and the
973
results of the risk assessment. The commission may not approve
974
contact with the child if the parent or legal guardian refuses to
975
give written consent for supervised contact;
976
d. A safety plan prepared by the qualified practitioner,
977
who provides treatment to the offender, in collaboration with the
978
sex offender, the child's parent or legal guardian, and the
979
child, when age appropriate, which details the acceptable
980
conditions of contact between the sex offender and the child. The
981
safety plan must be reviewed and approved by the Department of
982
Corrections before being submitted to the commission; and
983
e. Evidence that the child's parent or legal guardian, if
984
the parent or legal guardian is not the sex offender, understands
985
the need for and agrees to the safety plan and has agreed to
986
provide, or to designate another adult to provide, constant
987
supervision any time the child is in contact with the offender.
988
989
The commission may not appoint a person to conduct a risk
990
assessment and may not accept a risk assessment from a person who
991
has not demonstrated to the commission that he or she has met the
992
requirements of a qualified practitioner as defined in this
993
section.
994
6. If the victim was under age 18, a prohibition on working
995
for pay or as a volunteer at any school, day care center, park,
996
playground, or other place where children regularly congregate,
997
as prescribed by the commission.
998
7. Unless otherwise indicated in the treatment plan
999
provided by the sexual offender treatment program, a prohibition
1000
on viewing, owning, or possessing any obscene, pornographic, or
1001
sexually stimulating visual or auditory material, including
1002
telephone, electronic media, computer programs, or computer
1003
services that are relevant to the offender's deviant behavior
1004
pattern.
1005
8. Effective for a releasee whose crime is committed on or
1006
after July 1, 2005, a prohibition on accessing the Internet or
1007
other computer services until the offender's sex offender
1008
treatment program, after a risk assessment is completed, approves
1009
and implements a safety plan for the offender's accessing or
1010
using the Internet or other computer services.
1011
9. A requirement that the releasee must submit two
1012
specimens of blood to the Florida Department of Law Enforcement
1013
to be registered with the DNA database.
1014
10. A requirement that the releasee make restitution to the
1015
victim, as determined by the sentencing court or the commission,
1016
for all necessary medical and related professional services
1017
relating to physical, psychiatric, and psychological care.
1018
11. Submission to a warrantless search by the community
1019
control or probation officer of the probationer's or community
1020
controllee's person, residence, or vehicle.
1021
(b) For a releasee whose crime was committed on or after
1022
October 1, 1997, in violation of chapter 794, s. 800.04, s.
1024
conditional release supervision, in addition to any other
1025
provision of this subsection, the commission shall impose the
1026
following additional conditions of conditional release
1027
supervision:
1028
1. As part of a treatment program, participation in a
1029
minimum of one annual polygraph examination to obtain information
1030
necessary for risk management and treatment and to reduce the sex
1031
offender's denial mechanisms. The polygraph examination must be
1032
conducted by a polygrapher trained specifically in the use of the
1033
polygraph for the monitoring of sex offenders, where available,
1034
and at the expense of the sex offender. The results of the
1035
polygraph examination shall not be used as evidence in a hearing
1036
to prove that a violation of supervision has occurred.
1037
2. Maintenance of a driving log and a prohibition against
1038
driving a motor vehicle alone without the prior approval of the
1039
supervising officer.
1040
3. A prohibition against obtaining or using a post office
1041
box without the prior approval of the supervising officer.
1042
4. If there was sexual contact, a submission to, at the
1043
probationer's or community controllee's expense, an HIV test with
1044
the results to be released to the victim or the victim's parent
1045
or guardian.
1046
5. Electronic monitoring of any form when ordered by the
1047
commission.
1048
Section 28. Subsection (2) of section 948.03, Florida
1049
Statutes, is amended to read:
1050
948.03 Terms and conditions of probation.--
1051
(2) The enumeration of specific kinds of terms and
1052
conditions shall not prevent the court from adding thereto such
1053
other or others as it considers proper. However, the sentencing
1054
court may only impose a condition of supervision allowing an
1057
order stipulates that it is contingent upon the approval of the
1058
receiving state interstate compact authority. The court may
1059
rescind or modify at any time the terms and conditions
1060
theretofore imposed by it upon the probationer. However, if the
1061
court withholds adjudication of guilt or imposes a period of
1062
incarceration as a condition of probation, the period shall not
1063
exceed 364 days, and incarceration shall be restricted to either
1064
a county facility, a probation and restitution center under the
1065
jurisdiction of the Department of Corrections, a probation
1066
program drug punishment phase I secure residential treatment
1067
institution, or a community residential facility owned or
1068
operated by any entity providing such services.
1069
Section 29. Paragraph (c) of subsection (8) of section
1070
948.06, Florida Statutes, is amended to read:
1071
948.06 Violation of probation or community control;
1072
revocation; modification; continuance; failure to pay restitution
1073
or cost of supervision.--
1074
(8)
1075
(c) For purposes of this section, the term "qualifying
1076
offense" means any of the following:
1077
1. Kidnapping or attempted kidnapping under s. 787.01,
1078
false imprisonment of a child under the age of 13 under s.
1080
or (c).
1081
2. Murder or attempted murder under s. 782.04, attempted
1083
3. Aggravated battery or attempted aggravated battery under
1084
s. 784.045.
1085
4. Sexual battery or attempted sexual battery under s.
1086
794.011(2), (3), (4), or (8)(b) or (c).
1087
5. Lewd or lascivious battery or attempted lewd or
1088
lascivious battery under s. 800.04(4), lewd or lascivious
1089
molestation under s. 800.04(5)(b) or (c)2., lewd or lascivious
1090
conduct under s. 800.04(6)(b), or lewd or lascivious exhibition
1091
under s. 800.04(7)(b), or lewd or lascivious exhibition on
1093
6. Robbery or attempted robbery under s. 812.13, carjacking
1094
or attempted carjacking under s. 812.133, or home invasion
1095
robbery or attempted home invasion robbery under s. 812.135.
1096
7. Lewd or lascivious offense upon or in the presence of an
1097
elderly or disabled person or attempted lewd or lascivious
1098
offense upon or in the presence of an elderly or disabled person
1099
under s. 825.1025.
1100
8. Sexual performance by a child or attempted sexual
1101
performance by a child under s. 827.071.
1102
9. Computer pornography under s. 847.0135(2) or (3),
1103
transmission of child pornography under s. 847.0137, or selling
1104
or buying of minors under s. 847.0145.
1105
10. Poisoning food or water under s. 859.01.
1106
11. Abuse of a dead human body under s. 872.06.
1107
12. Any burglary offense or attempted burglary offense that
1108
is either a first degree felony or second degree felony under s.
1109
810.02(2) or (3).
1110
13. Arson or attempted arson under s. 806.01(1).
1111
14. Aggravated assault under s. 784.021.
1112
15. Aggravated stalking under s. 784.048(3), (4), (5), or
1113
(7).
1114
16. Aircraft piracy under s. 860.16.
1115
17. Unlawful throwing, placing, or discharging of a
1116
destructive device or bomb under s. 790.161(2), (3), or (4).
1117
18. Treason under s. 876.32.
1118
19. Any offense committed in another jurisdiction which
1119
would be an offense listed in this paragraph if that offense had
1120
been committed in this state.
1121
Section 30. Subsection (2) of section 948.101, Florida
1122
Statutes, is amended to read:
1123
948.101 Terms and conditions of community control and
1124
criminal quarantine community control.--
1125
(2) The enumeration of specific kinds of terms and
1126
conditions does not prevent the court from adding thereto any
1127
other terms or conditions that the court considers proper.
1128
However, the sentencing court may only impose a condition of
1129
supervision allowing an offender convicted of s. 794.011, s.
1131
another state if the order stipulates that it is contingent upon
1132
the approval of the receiving state interstate compact authority.
1133
The court may rescind or modify at any time the terms and
1134
conditions theretofore imposed by it upon the offender in
1135
community control. However, if the court withholds adjudication
1136
of guilt or imposes a period of incarceration as a condition of
1137
community control, the period may not exceed 364 days, and
1138
incarceration shall be restricted to a county facility, a
1139
probation and restitution center under the jurisdiction of the
1140
Department of Corrections, a probation program drug punishment
1141
phase I secure residential treatment institution, or a community
1142
residential facility owned or operated by any entity providing
1143
such services.
1144
Section 31. Subsections (1) and (2) of section 948.30,
1145
Florida Statutes, are amended to read:
1146
948.30 Additional terms and conditions of probation or
1147
community control for certain sex offenses.--Conditions imposed
1148
pursuant to this section do not require oral pronouncement at the
1149
time of sentencing and shall be considered standard conditions of
1150
probation or community control for offenders specified in this
1151
section.
1152
(1) Effective for probationers or community controllees
1153
whose crime was committed on or after October 1, 1995, and who
1154
are placed under supervision for violation of chapter 794, s.
1156
must impose the following conditions in addition to all other
1157
standard and special conditions imposed:
1158
(a) A mandatory curfew from 10 p.m. to 6 a.m. The court may
1159
designate another 8-hour period if the offender's employment
1160
precludes the above specified time, and the alternative is
1161
recommended by the Department of Corrections. If the court
1162
determines that imposing a curfew would endanger the victim, the
1163
court may consider alternative sanctions.
1164
(b) If the victim was under the age of 18, a prohibition on
1165
living within 1,000 feet of a school, day care center, park,
1166
playground, or other place where children regularly congregate,
1167
as prescribed by the court. The 1,000-foot distance shall be
1168
measured in a straight line from the offender's place of
1169
residence to the nearest boundary line of the school, day care
1170
center, park, playground, or other place where children
1171
congregate. The distance may not be measured by a pedestrian
1172
route or automobile route.
1173
(c) Active participation in and successful completion of a
1174
sex offender treatment program with qualified practitioners
1175
specifically trained to treat sex offenders, at the probationer's
1176
or community controllee's own expense. If a qualified
1177
practitioner is not available within a 50-mile radius of the
1178
probationer's or community controllee's residence, the offender
1179
shall participate in other appropriate therapy.
1180
(d) A prohibition on any contact with the victim, directly
1181
or indirectly, including through a third person, unless approved
1182
by the victim, the offender's therapist, and the sentencing
1183
court.
1184
(e) If the victim was under the age of 18, a prohibition on
1185
contact with a child under the age of 18 except as provided in
1186
this paragraph. The court may approve supervised contact with a
1187
child under the age of 18 if the approval is based upon a
1188
recommendation for contact issued by a qualified practitioner who
1189
is basing the recommendation on a risk assessment. Further, the
1190
sex offender must be currently enrolled in or have successfully
1191
completed a sex offender therapy program. The court may not grant
1192
supervised contact with a child if the contact is not recommended
1193
by a qualified practitioner and may deny supervised contact with
1194
a child at any time. When considering whether to approve
1195
supervised contact with a child, the court must review and
1196
consider the following:
1197
1. A risk assessment completed by a qualified practitioner.
1198
The qualified practitioner must prepare a written report that
1199
must include the findings of the assessment and address each of
1200
the following components:
1201
a. The sex offender's current legal status;
1202
b. The sex offender's history of adult charges with
1203
apparent sexual motivation;
1204
c. The sex offender's history of adult charges without
1205
apparent sexual motivation;
1206
d. The sex offender's history of juvenile charges, whenever
1207
available;
1208
e. The sex offender's offender treatment history, including
1209
consultations with the sex offender's treating, or most recent
1210
treating, therapist;
1211
f. The sex offender's current mental status;
1212
g. The sex offender's mental health and substance abuse
1213
treatment history as provided by the Department of Corrections;
1214
h. The sex offender's personal, social, educational, and
1215
work history;
1216
i. The results of current psychological testing of the sex
1217
offender if determined necessary by the qualified practitioner;
1218
j. A description of the proposed contact, including the
1219
location, frequency, duration, and supervisory arrangement;
1220
k. The child's preference and relative comfort level with
1221
the proposed contact, when age appropriate;
1222
l. The parent's or legal guardian's preference regarding
1223
the proposed contact; and
1224
m. The qualified practitioner's opinion, along with the
1225
basis for that opinion, as to whether the proposed contact would
1226
likely pose significant risk of emotional or physical harm to the
1227
child.
1228
1229
The written report of the assessment must be given to the court;
1230
2. A recommendation made as a part of the risk assessment
1231
report as to whether supervised contact with the child should be
1232
approved;
1233
3. A written consent signed by the child's parent or legal
1234
guardian, if the parent or legal guardian is not the sex
1235
offender, agreeing to the sex offender having supervised contact
1236
with the child after receiving full disclosure of the sex
1237
offender's present legal status, past criminal history, and the
1238
results of the risk assessment. The court may not approve contact
1239
with the child if the parent or legal guardian refuses to give
1240
written consent for supervised contact;
1241
4. A safety plan prepared by the qualified practitioner,
1242
who provides treatment to the offender, in collaboration with the
1243
sex offender, the child's parent or legal guardian, if the parent
1244
or legal guardian is not the sex offender, and the child, when
1245
age appropriate, which details the acceptable conditions of
1246
contact between the sex offender and the child. The safety plan
1247
must be reviewed and approved by the court; and
1248
5. Evidence that the child's parent or legal guardian
1249
understands the need for and agrees to the safety plan and has
1250
agreed to provide, or to designate another adult to provide,
1251
constant supervision any time the child is in contact with the
1252
offender.
1253
1254
The court may not appoint a person to conduct a risk assessment
1255
and may not accept a risk assessment from a person who has not
1256
demonstrated to the court that he or she has met the requirements
1257
of a qualified practitioner as defined in this section.
1258
(f) If the victim was under age 18, a prohibition on
1259
working for pay or as a volunteer at any place where children
1260
regularly congregate, including, but not limited to, schools, day
1261
care centers, parks, playgrounds, pet stores, libraries, zoos,
1262
theme parks, and malls.
1263
(g) Unless otherwise indicated in the treatment plan
1264
provided by the sexual offender treatment program, a prohibition
1265
on viewing, accessing, owning, or possessing any obscene,
1266
pornographic, or sexually stimulating visual or auditory
1267
material, including telephone, electronic media, computer
1268
programs, or computer services that are relevant to the
1269
offender's deviant behavior pattern.
1270
(h) Effective for probationers and community controllees
1271
whose crime is committed on or after July 1, 2005, a prohibition
1272
on accessing the Internet or other computer services until the
1273
offender's sex offender treatment program, after a risk
1274
assessment is completed, approves and implements a safety plan
1275
for the offender's accessing or using the Internet or other
1276
computer services.
1277
(i) A requirement that the probationer or community
1278
controllee must submit a specimen of blood or other approved
1279
biological specimen to the Department of Law Enforcement to be
1280
registered with the DNA data bank.
1281
(j) A requirement that the probationer or community
1282
controllee make restitution to the victim, as ordered by the
1283
court under s. 775.089, for all necessary medical and related
1284
professional services relating to physical, psychiatric, and
1285
psychological care.
1286
(k) Submission to a warrantless search by the community
1287
control or probation officer of the probationer's or community
1288
controllee's person, residence, or vehicle.
1289
(2) Effective for a probationer or community controllee
1290
whose crime was committed on or after October 1, 1997, and who is
1291
placed on community control or sex offender probation for a
1293
or s. 847.0145, in addition to any other provision of this
1294
section, the court must impose the following conditions of
1295
probation or community control:
1296
(a) As part of a treatment program, participation at least
1297
annually in polygraph examinations to obtain information
1298
necessary for risk management and treatment and to reduce the sex
1299
offender's denial mechanisms. A polygraph examination must be
1300
conducted by a polygrapher trained specifically in the use of the
1301
polygraph for the monitoring of sex offenders, where available,
1302
and shall be paid for by the sex offender. The results of the
1303
polygraph examination shall not be used as evidence in court to
1304
prove that a violation of community supervision has occurred.
1305
(b) Maintenance of a driving log and a prohibition against
1306
driving a motor vehicle alone without the prior approval of the
1307
supervising officer.
1308
(c) A prohibition against obtaining or using a post office
1309
box without the prior approval of the supervising officer.
1310
(d) If there was sexual contact, a submission to, at the
1311
probationer's or community controllee's expense, an HIV test with
1312
the results to be released to the victim or the victim's parent
1313
or guardian.
1314
(e) Electronic monitoring when deemed necessary by the
1315
community control or probation officer and his or her supervisor,
1316
and ordered by the court at the recommendation of the Department
1317
of Corrections.
1318
Section 32. Subsection (1) of section 948.31, Florida
1319
Statutes, is amended to read:
1320
948.31 Diagnosis, evaluation, and treatment of offenders
1321
placed on probation or community control for certain sex offenses
1322
or child exploitation.--The court shall require a diagnosis and
1323
evaluation to determine the need of a probationer or offender in
1324
community control for treatment. If the court determines that a
1325
need therefor is established by such diagnosis and evaluation
1326
process, the court shall require outpatient counseling as a term
1327
or condition of probation or community control for any person who
1328
was found guilty of any of the following, or whose plea of guilty
1329
or nolo contendere to any of the following was accepted by the
1330
court:
1331
(1) Lewd or lascivious battery, lewd or lascivious
1332
molestation, lewd or lascivious conduct, or lewd or lascivious
1334
1335
Such counseling shall be required to be obtained from a community
1336
mental health center, a recognized social service agency
1337
providing mental health services, or a private mental health
1338
professional or through other professional counseling. The plan
1339
for counseling for the individual shall be provided to the court
1340
for review.
1341
Section 33. This act shall take effect October 1, 2008.
CODING: Words stricken are deletions; words underlined are additions.