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A bill to be entitled

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An act relating to the sentencing of juveniles; amending

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s. 985.565, F.S.; authorizing the court to sentence a

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juvenile using juvenile sanctions, adult sanctions, or a

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blend of juvenile and adult sanctions; requiring the

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Department of Juvenile Justice to file a written report

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with the court if the department believes the child's

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sanction is inappropriate; authorizing the court to place

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the child on probation; requiring the department to notify

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the court before it discharges a child from a sanction;

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requiring the court to review the child's educational

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needs assessment and make specific findings as to the

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child's educational status; authorizing the court to order

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that the child attain appropriate educational goals;

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listing certain appropriate education goals; reenacting s.

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985.556(1), F.S., relating to the voluntary waiver of

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juvenile court jurisdiction, to incorporate the amendments

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made to s. 985.565, F.S., in a reference thereto;

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providing an effective date.

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

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     Section 1.  Section 985.565, Florida Statutes, is amended to

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read:

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     985.565 Sentencing powers; procedures; alternatives and

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blended sanctions for juveniles prosecuted as adults; educational

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attainment.--

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     (1)  POWERS OF DISPOSITION.--

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

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law may, as an alternative to adult dispositions, be committed to

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the department for treatment in an appropriate program for

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children outside the adult correctional system or be placed on

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juvenile probation.

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     (b) In determining whether to impose juvenile sanctions,

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instead of adult sanctions, or blended juvenile and adult

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sanctions, the court shall consider the following criteria:

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     1.  The seriousness of the offense to the community and

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whether the community would best be protected by juvenile or

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adult sanctions.

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     2.  Whether the offense was committed in an aggressive,

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violent, premeditated, or willful manner.

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     3.  Whether the offense was against persons or against

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property, with greater weight being given to offenses against

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persons, especially if personal injury resulted.

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     4.  The sophistication and maturity of the offender.

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     5.  The record and previous history of the offender,

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including:

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     a.  Previous contacts with the Department of Corrections,

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the Department of Juvenile Justice, the former Department of

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Health and Rehabilitative Services, the Department of Children

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and Family Services, law enforcement agencies, and the courts.

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     b.  Prior periods of probation.

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     c.  Prior adjudications that the offender committed a

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delinquent act or violation of law as a child.

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     d.  Prior commitments to the Department of Juvenile Justice,

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the former Department of Health and Rehabilitative Services, the

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Department of Children and Family Services, or other facilities

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or institutions.

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     6.  The prospects for adequate protection of the public and

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the likelihood of deterrence and reasonable rehabilitation of the

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offender if assigned to services and facilities of the Department

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of Juvenile Justice.

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     7.  Whether the Department of Juvenile Justice has

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appropriate programs, facilities, and services immediately

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available.

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     8.  Whether adult sanctions would provide more appropriate

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punishment and deterrence to further violations of law than the

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imposition of juvenile sanctions.

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     (2)  PRESENTENCE INVESTIGATION REPORT.--

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

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refer the case to the department for investigation and

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recommendation as to the suitability of its programs for the

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child.

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     (b)  Upon completion of the presentence investigation

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

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state attorney by the department prior to the sentencing hearing.

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     (3)  SENTENCING HEARING.--

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

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consider a presentence investigation report by the Department of

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Corrections regarding the suitability of the offender for

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disposition as an adult or as a juvenile. The presentence

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investigation report must include a comments section prepared by

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the Department of Juvenile Justice, with its recommendations as

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to disposition. This report requirement may be waived by the

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offender.

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     (b)  After considering the presentence investigation report,

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the court shall give all parties present at the hearing an

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opportunity to comment on the issue of sentence and any proposed

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rehabilitative plan. Parties to the case include the parent,

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guardian, or legal custodian of the offender; the offender's

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counsel; the state attorney; representatives of the Department of

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Corrections and the Department of Juvenile Justice; the victim or

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victim's representative; representatives of the school system;

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and the law enforcement officers involved in the case.

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

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and material evidence, including other reports, written or oral,

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in its effort to determine the action to be taken with regard to

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the child, and may rely upon such evidence to the extent of its

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probative value even if the evidence would not be competent in an

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adjudicatory hearing.

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

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hearing and shall notify, or subpoena if appropriate, the

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

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the disposition hearing.

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     (4)  SENTENCING ALTERNATIVES.--

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     (a)  Adult sanctions.--

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

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to have committed the offense punishable by death or life

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imprisonment, the child shall be sentenced as an adult. If the

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juvenile is not found to have committed the indictable offense

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but is found to have committed a lesser included offense or any

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other offense for which he or she was indicted as a part of the

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criminal episode, the court may sentence as follows:

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     a.  As an adult;

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     b.  Under chapter 958; or

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     c.  As a juvenile under this section.

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

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criminal prosecution pursuant to information or waiver of

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juvenile court jurisdiction is found to have committed a

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

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

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may sentence as follows:

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     a.  As an adult;

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     b.  Under chapter 958; or

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     c.  As a juvenile under this section.

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     3.  Notwithstanding any other provision to the contrary, if

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the state attorney is required to file a motion to transfer and

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certify the juvenile for prosecution as an adult under s.

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985.556(3) and that motion is granted, or if the state attorney

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is required to file an information under s. 985.557(2)(a) or (b),

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the court must impose adult sanctions.

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     4.  Any sentence imposing adult sanctions is presumed

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

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findings or enumerate the criteria in this subsection as any

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basis for its decision to impose adult sanctions.

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     5.  When a child has been transferred for criminal

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

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

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the enforcement of any restitution ordered in any juvenile

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proceeding.

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

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

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

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juvenile sanctions under this paragraph. If juvenile sanctions

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

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adjudge the child to have committed a delinquent act.

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Adjudication of delinquency shall not be deemed a conviction, nor

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shall it operate to impose any of the civil disabilities

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ordinarily resulting from a conviction. The court shall impose an

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adult sanction or a juvenile sanction or and may not sentence the

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child to blended juvenile and adult sanctions a combination of

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adult and juvenile punishments. An adult sanction or A juvenile

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sanction or a blended juvenile and adult sanction may include

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enforcement of an order of restitution or probation previously

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ordered in any juvenile proceeding. However, if the court imposes

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a juvenile sanction and the department determines that the

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sanction is inappropriate unsuitable for the child, the

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department shall provide the sentencing court with a written

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report outlining the basis for its objections to the juvenile

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sanction and shall simultaneously provide a copy to the state

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attorney and defense counsel. The department shall return custody

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of the child to the sentencing court for further proceedings,

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including the imposition of juvenile sanctions, blended juvenile

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and adult sanctions, alternative sanctions, or adult sanctions.

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Upon adjudicating a child delinquent under subsection (1), the

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court may sentence the child to juvenile probation, juvenile

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commitment, blended juvenile and adult sanctions, or alternative

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sanctions under ss. 985.435, 985.437, 985.439, 985.441, 985.445,

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985.45, and 985.455:

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

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under the supervision of the department for an indeterminate

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period of time until the child reaches the age of 21 19 years or

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sooner if discharged by order of the court. If at any time before

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the child's 21st birthday the department seeks to discharge the

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child from juvenile probation, the department shall notify the

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sentencing court of its intent to discharge the child no later

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than 30 days before the discharge. The department shall file a

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written notice of its proposal with the clerk of the court and

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give a copy of the written notice to the sentencing judge, the

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state attorney, and defense counsel at the time it files the

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

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court or the state attorney to object to the department's notice

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

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

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clerk of the court shall close the case.

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

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treatment in an appropriate program for children for an

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

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discharged by order of the court department. If at any time

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before the child's 21st birthday the department seeks to

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discharge the child from a commitment or after-care program, the

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department shall notify the sentencing court of its intent to

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discharge the child no later than 30 14 days prior to discharge.

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The department shall file a written notice of its proposal with

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the clerk of the court and give a copy of the written notice to

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the sentencing judge, the state attorney, and defense counsel at

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

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of the sentencing court or the state attorney to object timely

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respond to the department's notice of discharge within the 30-day

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period shall be considered as approval for discharge. If there is

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no objection, the clerk of the court shall close the case.

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

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treatment in an appropriate program for children for an

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

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or sooner if discharged by order of the court, followed by

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probation under the supervision of the Department of Corrections.

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The department shall notify the sentencing court of its intent to

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discharge the child no later than 30 days before the discharge.

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The department must file a written notice of its proposal with

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the clerk of the court and give a copy of the notice to the

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sentencing judge, the Department of Corrections, the state

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

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

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

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

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of the proposed discharge. An order to discharge may not be

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entered until the Department of Corrections has met with the

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child and explained the terms of probation.

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     4.3. The court may order disposition under ss. 985.435,

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985.437, 985.439, 985.441, 985.445, 985.45, and 985.455 as an

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alternative to youthful offender or adult sentencing if the court

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determines not to impose youthful offender or adult sanctions.

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

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probation, juvenile commitment, blended juvenile and adult

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sanctions, or alternative sanctions, the court shall consider the

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educational needs assessment conducted pursuant to 985.18(1) and

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(2), the predisposition report, together with any other report

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

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information. The court shall make a finding as to the child's

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educational status, including, but not limited to, the child's

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strengths, abilities, and unmet and special educational needs.

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The court may enter an order, as a condition of probation or

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commitment, that the child attain an appropriate educational goal

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or goals. Examples of appropriate educationally based goals are:

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     a. Attainment of a high school diploma or its equivalent.

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     b. Successful completion of literacy courses.

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     c. Successful completion of vocational courses.

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     d. Attendance and successful completion of the child's

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current grade if enrolled in school.

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     e. Enrollment in an apprenticeship or similar program.

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     (c)  Adult sanctions upon failure of juvenile sanctions.--If

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a child proves not to be suitable to a commitment program,

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juvenile probation program, or treatment program under paragraph

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(b), the department shall provide the sentencing court with a

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written report outlining the basis for its objections to the

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juvenile sanction and shall simultaneously provide a copy of the

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report to the state attorney and the defense counsel. The

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department shall schedule a hearing within 30 days. Upon hearing,

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the court may revoke the previous adjudication, impose an

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adjudication of guilt, and impose any sentence which it may

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lawfully impose, giving credit for all time spent by the child in

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

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

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of this paragraph, a child may be found not suitable to a

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commitment program, community control program, or treatment

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program under paragraph (b) if the child commits a new violation

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of law while under juvenile sanctions, if the child commits any

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other violation of the conditions of juvenile sanctions, or if

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the child's actions are otherwise determined by the court to

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demonstrate a failure of juvenile sanctions.

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

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is sentenced to juvenile sanctions, further proceedings involving

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those sanctions shall continue to be heard in the adult court.

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

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eligible to attend public school and the court finds that the

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

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attend the same school as the child, the court placement order

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shall include a finding pursuant to the proceeding described in

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s. 985.455(2), regardless of whether adjudication is withheld.

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It is the intent of the Legislature that the criteria and

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guidelines in this subsection are mandatory and that a

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determination of disposition under this subsection is subject to

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the right of the child to appellate review under s. 985.534.

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     Section 2.  For the purpose of incorporating the amendments

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made by this act to section 985.565, Florida Statutes, in a

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reference thereto, subsection (1) of section 985.556, Florida

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Statutes, is reenacted to read:

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     985.556  Waiver of juvenile court jurisdiction; hearing.--

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

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

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alleged to have committed a violation of law and, prior to the

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commencement of an adjudicatory hearing, the child, joined by a

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parent or, in the absence of a parent, by the guardian or

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guardian ad litem, demands in writing to be tried as an adult.

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Once a child has been transferred for criminal prosecution

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pursuant to a voluntary waiver hearing and has been found to have

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committed the presenting offense or a lesser included offense,

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the child shall be handled thereafter in every respect as an

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adult for any subsequent violation of state law, unless the court

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imposes juvenile sanctions under s. 985.565(4)(b).

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     Section 3.  This act shall take effect October 1, 2008.