Florida Senate - 2009                             CS for SB 1722
       
       
       
       By the Committee on Criminal and Civil Justice Appropriations;
       and Senator Crist
       
       
       
       604-04039-09                                          20091722c1
       
    1                        A bill to be entitled                      
    2         An act relating to the Department of Corrections;
    3         amending s. 775.082, F.S.; requiring that the court
    4         sentence certain offenders to a nonstate prison
    5         sanction unless the court makes written findings that
    6         ordering an offender to a nonstate prison sanction
    7         could present a danger to the public; creating s.
    8         921.00241, F.S.; providing that on or after a
    9         specified date a court may divert from the state
   10         correctional system certain offenders who otherwise
   11         would be sentenced to state prison; providing
   12         eligibility criteria for participation in the state
   13         prison diversion program if such a program is funded
   14         and exists in the circuit; requiring the court to make
   15         written findings that the offender meets the
   16         eligibility criteria for the diversion program;
   17         creating s. 944.171, F.S.; authorizing the Department
   18         of Corrections to contract with county and municipal
   19         entities to house inmates committed to the department;
   20         authorizing the department to enter into contractual
   21         agreements with another state, a political subdivision
   22         of another state, or a vendor in another state to
   23         transfer and confine Florida inmates within that
   24         state; requiring the reclassification of inmates
   25         before a transfer occurs; providing for the contents
   26         of the contract; providing that a transferred inmate
   27         remains subject to the rules of the Florida Parole
   28         Commission; requiring that contracts for the transfer
   29         of inmates be procured according to state law;
   30         requiring that additional beds authorized under a
   31         contract be added to the total capacity of the state
   32         correctional system; authorizing the department to
   33         adopt rules; amending s. 945.6037, F.S.; increasing
   34         the copayment that an inmate must make for a
   35         nonemergency visit to a health care provider; creating
   36         s. 945.6041, F.S.; defining terms; limiting the
   37         compensation of health care providers that do not have
   38         contracts to provide inmate medical services with the
   39         department or private correctional facilities;
   40         limiting compensation to entities that provide
   41         emergency medical transportation services for inmates
   42         if those entities do not have a contract with the
   43         department or certain private correctional facilities;
   44         amending s. 947.1405, F.S.; requiring any person who
   45         has been placed under supervision and is
   46         electronically monitored by the department to pay the
   47         department for the cost of the electronic monitoring
   48         service; requiring that funds collected from the
   49         person be deposited into the General Revenue Fund;
   50         authorizing the Department of Corrections to exempt a
   51         person from the payment of all or any part of the
   52         electronic monitoring service cost under certain
   53         circumstances; amending s. 948.01, F.S.; requiring the
   54         court to use the orders of supervision prepared by the
   55         Department of Corrections when placing a defendant on
   56         community supervision; amending s. 948.09, F.S.;
   57         requiring a person to pay the department the cost of
   58         electronically monitoring the offender while the
   59         offender is placed on supervision; providing for a
   60         cost cap on the monitoring service; providing that the
   61         department may exempt a person from paying all or any
   62         part of the costs of the electronic monitoring service
   63         under certain circumstances; amending s. 948.11, F.S.;
   64         requiring a person who is electronically monitored on
   65         supervision to pay the department for the electronic
   66         monitoring services; amending s. 957.09, F.S.;
   67         providing that the provisions governing private
   68         correctional facilities do not apply to contracts
   69         between the department and county and municipal
   70         entities, other states, political subdivisions of
   71         another state, or correctional management service
   72         vendors in another state for the transfer and
   73         confinement of state inmates; providing for future
   74         expiration of such exemption; amending s. 958.045,
   75         F.S.; requiring the Department of Corrections to
   76         submit a report to the court at least 30 days before a
   77         youthful offender is scheduled to complete the basic
   78         training program; requiring the court to modify the
   79         youthful offender’s sentence and place the offender on
   80         probation if the youthful offender has successfully
   81         completed the basic training program; providing an
   82         effective date.
   83  
   84  Be It Enacted by the Legislature of the State of Florida:
   85  
   86         Section 1. Present subsection (10) of section 775.082,
   87  Florida Statutes, is renumbered as subsection (11), and a new
   88  subsection (10) is added to that section, to read:
   89         775.082 Penalties; applicability of sentencing structures;
   90  mandatory minimum sentences for certain reoffenders previously
   91  released from prison.—
   92         (10)If a defendant is sentenced on or after July 1, 2009,
   93  for committing a third-degree felony that is not a forcible
   94  felony as defined in s. 776.08, but excluding any third-degree
   95  felony violation under chapter 810, and if the total sentence
   96  points pursuant to s. 921.0024 are 22 points or fewer, the court
   97  must sentence the offender to a nonstate prison sanction.
   98  However, if the court makes written findings that a nonstate
   99  prison sanction could present a danger to the public, the court
  100  may sentence the offender to a state correctional facility
  101  pursuant to this section.
  102         Section 2. Section 921.00241, Florida Statutes, is created
  103  to read:
  104         921.00241Prison diversion program.—
  105         (1)Notwithstanding s. 921.0024 and effective for sentences
  106  imposed on or after July 1, 2009, a court may divert from the
  107  state correctional system an offender who otherwise would be
  108  sentenced to a state facility by sentencing the offender to a
  109  nonstate prison sanction as provided in subsection (2). An
  110  offender may be sentenced to a nonstate prison sanction if the
  111  offender meets all of the following criteria:
  112         (a)The offender’s primary offense is a felony of the third
  113  degree;
  114         (b)The offender’s total sentence points score, as provided
  115  in s. 921.0024, is not more than 48 points, or the offender’s
  116  total sentence points score is 54 points and six of those points
  117  are for a violation of probation, community control, or other
  118  community supervision, and do not involve a new violation of
  119  law;
  120         (c)The offender has not been convicted or previously
  121  convicted of a forcible felony as defined in s. 776.08, but
  122  excluding any third-degree felony violation under chapter 810;
  123  and
  124         (d)The offender’s primary offense does not require a
  125  minimum mandatory sentence.
  126         (2)If the court elects to impose a sentence as provided in
  127  this section, the court shall sentence the offender to a term of
  128  probation, community control, or community supervision, with
  129  mandatory participation in a prison diversion program of the
  130  Department of Corrections if such program is funded and exists
  131  in the judicial circuit in which the offender is sentenced. The
  132  prison diversion program shall be designed to meet the unique
  133  needs of each judicial circuit and of the offender population of
  134  that circuit. The program may require residential,
  135  nonresidential, or day reporting requirements, substance abuse
  136  treatment, employment, restitution, academic or vocational
  137  opportunities, or community service work.
  138         (3)The court that sentences a defendant to a nonstate
  139  prison sanction pursuant to subsection (2) shall make written
  140  findings that the defendant meets the criteria in subsection (1)
  141  and the sentencing order shall indicate that the offender was
  142  sentenced to the prison diversion program pursuant to subsection
  143  (2)
  144         Section 3. Section 944.171, Florida Statutes, is created to
  145  read:
  146         944.171Housing of inmates.—
  147         (1)(a)Notwithstanding the provisions of s. 944.17, Florida
  148  Statutes, to the contrary, the Department of Corrections may
  149  contract with county or municipal facilities for the purpose of
  150  housing inmates committed to the department.
  151         (b)Notwithstanding the provisions of ss. 944.17 and
  152  944.1905, Florida Statutes, to the contrary, before transferring
  153  a state inmate to another facility as authorized under this
  154  section, the inmate shall be reclassified and scored as to
  155  custody risk based on the current offense and not on prior
  156  criminal history. Upon return to a state correctional
  157  institution, the inmate shall be reclassified based on the
  158  provisions of ss. 944.17 and 944.1905, Florida Statutes.
  159         (c)Any inmate placed in another facility under this
  160  section remains under the jurisdiction of the department.
  161         (2)(a)Notwithstanding the provisions of s. 944.17, Florida
  162  Statutes, to the contrary, the Department of Corrections may
  163  enter into contracts with another state, a political subdivision
  164  of another state, or a correctional management services vendor
  165  in another state for the transfer and confinement in that state
  166  of inmates who have been committed to the custody of the
  167  department. Any such contract must include:
  168         1.A termination date.
  169         2.Provisions concerning the costs of inmate maintenance,
  170  extraordinary medical and dental expenses, and any participation
  171  in or receipt by inmates of rehabilitative or correctional
  172  services, facilities, programs, or treatment, including those
  173  costs not reasonably included as part of normal maintenance.
  174         3.Provisions concerning participation in programs of
  175  inmate employment, if any, the disposition or crediting of any
  176  payments received by inmates on account of employment, and the
  177  crediting of proceeds or disposal of any products resulting from
  178  employment.
  179         4.Provisions for the delivery and retaking of inmates.
  180         5.A waiver of extradition by this state and the state to
  181  which the inmates are transferred.
  182         6.Retention of jurisdiction of the inmates transferred by
  183  Florida.
  184         7.Regular reporting procedures concerning Florida inmates
  185  by officials of the state, political subdivision, or
  186  correctional management services vendor with which the
  187  department is contracting.
  188         8.Provisions concerning procedures for community
  189  supervision, including probation, parole, conditional release,
  190  and discharge.
  191         9.The same standards of reasonable and humane care as the
  192  inmates would receive in an appropriate institution in this
  193  state.
  194         10.Any other matters that are necessary and appropriate to
  195  establish the obligations, responsibilities, and rights of
  196  Florida and the state, political subdivision, or correctional
  197  management services vendor with which the department is
  198  contracting.
  199         (b)Inmates from Florida state prisons while in an
  200  institution in another state are subject to all provisions of
  201  law and rules concerning the confinement of persons committed
  202  for violations of the laws of that state, except as otherwise
  203  provided for by any contract entered into under this section.
  204         (c)The Florida Parole Commission shall conduct any parole
  205  hearing for an inmate confined under a contract pursuant to this
  206  section according to the rules of the commission.
  207         (d)Contracts under this section shall be procured in
  208  accordance with s. 287.057, Florida Statutes.
  209         (3)Any beds contracted under this section shall be added
  210  to the total capacity of the correctional system as defined in
  211  s. 944.023, Florida Statutes, notwithstanding any law to the
  212  contrary.
  213         (4)In making placements authorized by this section, the
  214  department shall consider, to the extent possible, the proximity
  215  of the receiving facility to the inmate’s family, consistent
  216  with s. 944.8031, Florida Statutes.
  217         (5)The Department of Corrections may adopt rules to
  218  administer this section.
  219         Section 4. Paragraph (a) of subsection (1) of section
  220  945.6037, Florida Statutes, is amended to read:
  221         945.6037 Nonemergency health care; inmate copayments.—
  222         (1)(a) Effective October 1, 1997, For each nonemergency
  223  visit by an inmate to a health care provider which visit is
  224  initiated by the inmate, the inmate must make a copayment of $5
  225  $4. A copayment may not be charged for the required initial
  226  medical history and physical examination of the inmate.
  227         Section 5. Section 945.6041, Florida Statutes, is created
  228  to read:
  229         945.6041Inmate medical services.—
  230         (1)As used in this section, the term:
  231         (a)“Emergency medical transportation services” includes,
  232  but is not limited to, services rendered by ambulances,
  233  emergency medical services vehicles, and air ambulances as those
  234  terms are defined in s. 401.23.
  235         (b)“Health care provider” has the same meaning as provided
  236  in s. 766.105.
  237         (2)(a)Compensation to a health care provider to provide
  238  inmate medical services may not exceed 110 percent of the
  239  Medicare allowable rate if the health care provider does not
  240  have a contract to provide services with the department or the
  241  private correctional facility, as defined in s. 944.710, which
  242  houses the inmate.
  243         (b)Notwithstanding paragraph (a), compensation to a health
  244  care provider to provide inmate medical services may not exceed
  245  125 percent of the Medicare allowable rate if:
  246         1.The health care provider does not have a contract to
  247  provide services with the department or the private correctional
  248  facility, as defined in s. 944.710, which houses the inmate; and
  249         2.The health care provider reported a negative operating
  250  margin for the previous year to the Agency for Health Care
  251  Administration through hospital-audited financial data.
  252         (3)Compensation to an entity to provide emergency medical
  253  transportation services for inmates may not exceed 110 percent
  254  of the Medicare allowable rate if the entity does not have a
  255  contract with the department or a private correctional facility,
  256  as defined in s. 944.710, to provide the services.
  257         (4)This section does not apply to charges for medical
  258  services provided at a hospital operated by the department.
  259         Section 6. Paragraph (b) of subsection (7) of section
  260  947.1405, Florida Statutes, is amended to read:
  261         947.1405 Conditional release program.—
  262         (7)
  263         (b) For a releasee whose crime was committed on or after
  264  October 1, 1997, in violation of chapter 794, s. 800.04, s.
  265  827.071, s. 847.0135(5), or s. 847.0145, and who is subject to
  266  conditional release supervision, in addition to any other
  267  provision of this subsection, the commission shall impose the
  268  following additional conditions of conditional release
  269  supervision:
  270         1. As part of a treatment program, participation in a
  271  minimum of one annual polygraph examination to obtain
  272  information necessary for risk management and treatment and to
  273  reduce the sex offender’s denial mechanisms. The polygraph
  274  examination must be conducted by a polygrapher trained
  275  specifically in the use of the polygraph for the monitoring of
  276  sex offenders, where available, and at the expense of the sex
  277  offender. The results of the polygraph examination shall not be
  278  used as evidence in a hearing to prove that a violation of
  279  supervision has occurred.
  280         2. Maintenance of a driving log and a prohibition against
  281  driving a motor vehicle alone without the prior approval of the
  282  supervising officer.
  283         3. A prohibition against obtaining or using a post office
  284  box without the prior approval of the supervising officer.
  285         4. If there was sexual contact, a submission to, at the
  286  probationer’s or community controllee’s expense, an HIV test
  287  with the results to be released to the victim or the victim’s
  288  parent or guardian.
  289         5. Electronic monitoring of any form when ordered by the
  290  commission. Any person who has been placed under supervision and
  291  is electronically monitored by the department shall pay the
  292  department for the cost of the electronic monitoring service at
  293  a rate that may not exceed the full cost of the monitoring
  294  service. Funds collected under this subparagraph shall be
  295  deposited into the General Revenue Fund. The department may
  296  exempt a person from the payment of all or any part of the
  297  electronic monitoring service cost if the department finds that
  298  any of the factors listed in s. 948.09(3) exist.
  299         Section 7. Subsection (1) of section 948.01, Florida
  300  Statutes, is amended to read:
  301         948.01 When court may place defendant on probation or into
  302  community control.—
  303         (1)(a) Any court of the state having original jurisdiction
  304  of criminal actions may at a time to be determined by the court,
  305  either with or without an adjudication of the guilt of the
  306  defendant, hear and determine the question of the probation of a
  307  defendant in a criminal case, except for an offense punishable
  308  by death, who has been found guilty by the verdict of a jury,
  309  has entered a plea of guilty or a plea of nolo contendere, or
  310  has been found guilty by the court trying the case without a
  311  jury. If the court places the defendant on probation or into
  312  community control for a felony, the department shall provide
  313  immediate supervision by an officer employed in compliance with
  314  the minimum qualifications for officers as provided in s.
  315  943.13. In no circumstances shall a private entity provide
  316  probationary or supervision services to felony or misdemeanor
  317  offenders sentenced or placed on probation or other supervision
  318  by the circuit court.
  319         (b)The court shall use the orders of supervision prepared
  320  by the Department of Corrections when placing a defendant on
  321  community supervision.
  322         Section 8. Subsection (2) of section 948.09, Florida
  323  Statutes, is amended to read:
  324         948.09 Payment for cost of supervision and rehabilitation.—
  325         (2) Any person being electronically monitored by the
  326  department as a result of being placed placement on supervision
  327  community control shall be required to pay the department for
  328  electronic monitoring services at a rate as a surcharge an
  329  amount that may not exceed the full cost of the monitoring
  330  service in addition to the cost of supervision fee as directed
  331  by the sentencing court. The funds collected under this
  332  subsection surcharge shall be deposited in the General Revenue
  333  Fund. The department may exempt a person from paying all or any
  334  part of the costs of the electronic monitoring service if it
  335  finds that any of the factors listed in subsection (3) exist.
  336         Section 9. Subsections (5) through (7) of section 948.11,
  337  Florida Statutes, are amended to read:
  338         948.11 Electronic monitoring devices.—
  339         (5) Any person being electronically monitored by the
  340  department as a result of being placed placement on supervision
  341  community control shall be required to pay the department for
  342  the electronic monitoring services a surcharge as provided in s.
  343  948.09(2).
  344         (6) For probationers, community controllees, or conditional
  345  releasees who have current or prior convictions for violent or
  346  sexual offenses, the department, in carrying out a court or
  347  commission order to electronically monitor an offender, must use
  348  a system that actively monitors and identifies the offender’s
  349  location and timely reports or records the offender’s presence
  350  near or within a crime scene or in a prohibited area or the
  351  offender’s departure from specified geographic limitations.
  352  Procurement of electronic monitoring services under this
  353  subsection shall be by competitive procurement in accordance
  354  with invitation to bid as defined in s. 287.057.
  355         (7) A person who intentionally alters, tampers with,
  356  damages, or destroys any electronic monitoring equipment
  357  pursuant to court or commission order, unless the such person is
  358  the owner of the equipment, or an agent of the owner, performing
  359  ordinary maintenance and repairs, commits a felony of the third
  360  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  361  775.084.
  362         Section 10. Section 957.09, Florida Statutes, is amended to
  363  read:
  364         957.09 Applicability of chapter to other provisions of
  365  law.—
  366         (1)(a) Any offense that if committed at a state
  367  correctional facility would be a crime shall be a crime if
  368  committed by or with regard to inmates at private correctional
  369  facilities operated pursuant to a contract entered into under
  370  this chapter.
  371         (b) All laws relating to commutation of sentences, release
  372  and parole eligibility, and the award of sentence credits shall
  373  apply to inmates incarcerated in a private correctional facility
  374  operated pursuant to a contract entered into under this chapter.
  375         (2) The provisions of this chapter are supplemental to the
  376  provisions of ss. 944.105 and 944.710-944.719. However, in any
  377  conflict between a provision of this chapter and a provision of
  378  such other sections, the provision of this chapter shall
  379  prevail.
  380         (3) The provisions of law governing the participation of
  381  minority business enterprises are applicable to this chapter.
  382         (4)The provisions of this chapter do not apply to
  383  contracts between the department and county and municipal
  384  entities, other states, political subdivisions of another state,
  385  or correctional management service vendors in another state for
  386  the transfer and confinement of state inmates.
  387         Section 11. Paragraph (c) of subsection (5) of section
  388  958.045, Florida Statutes, is amended to read:
  389         958.045 Youthful offender basic training program.—
  390         (5)
  391         (c) The portion of the sentence served prior to placement
  392  in the basic training program may not be counted toward program
  393  completion. The department shall submit a report to the court at
  394  least 30 days before the youthful offender is scheduled to
  395  complete the basic training program. The report must describe
  396  the offender’s performance in the basic training program. If the
  397  youthful offender’s performance has been satisfactory, the court
  398  shall issue an order modifying the sentence imposed and place
  399  the offender on probation subject to the offender successfully
  400  completing the remainder of the basic training program. Upon the
  401  offender’s completion of the basic training program, the
  402  department shall submit a report to the court that describes the
  403  offender’s performance. If the offender’s performance has been
  404  satisfactory, the court shall issue an order modifying the
  405  sentence imposed and placing the offender on probation. The term
  406  of probation may include placement in a community residential
  407  program. If the offender violates the conditions of probation,
  408  the court may revoke probation and impose any sentence that it
  409  might have originally imposed.
  410         Section 12. This act shall take effect July 1, 2009.
  411