CS for SB 1726                                   First Engrossed
       
       
       
       
       
       
       
       
       20091726e1
       
    1                        A bill to be entitled                      
    2         An act relating to postadjudicatory and pretrial
    3         treatment-based drug court programs; amending s.
    4         397.334, F.S.; specifying criteria that a court must
    5         consider before sentencing a person to a
    6         postadjudicatory treatment-based drug court program;
    7         providing for the judge presiding over a program to
    8         hear violations of probation or community control by
    9         program participants; requiring circuit courts to
   10         report data relating to postadjudicatory treatment
   11         based drug court programs to the Office of the State
   12         Courts Administrator; amending s. 921.0026, F.S.;
   13         providing that a court may depart from a lowest
   14         permissible sentence if the defendant is amenable to a
   15         drug court program and is otherwise qualified;
   16         amending s. 948.01, F.S.; authorizing a court to place
   17         certain nonviolent felony offenders who are on
   18         probation or community control into a postadjudicatory
   19         treatment-based drug court program; amending s.
   20         948.06, F.S.; authorizing a court to place certain
   21         nonviolent felony offenders who violate their
   22         probation or community control into a postadjudicatory
   23         treatment-based drug court program; amending s.
   24         948.08, F.S.; authorizing a court to place certain
   25         nonviolent felony offenders into a pretrial substance
   26         abuse education and treatment intervention program;
   27         conforming cross-references; amending s. 948.20, F.S.;
   28         authorizing a court to place certain chronic substance
   29         abusers who are nonviolent felony offenders into a
   30         postadjudicatory treatment-based drug court program;
   31         amending ss. 948.16 and 948.345, F.S.; conforming
   32         cross-references; providing legislative intent with
   33         respect to monitoring the programs; requiring that the
   34         Office of Program Policy Analysis and Government
   35         Accountability evaluate the programs and report to the
   36         Legislature; providing an effective date.
   37  
   38  Be It Enacted by the Legislature of the State of Florida:
   39  
   40         Section 1. Present subsections (3) through (8) of section
   41  397.334, Florida Statutes, are renumbered as subsections (4)
   42  through (9), respectively, a new subsection (3) is added to that
   43  section, and present subsection (5) of that section is amended,
   44  to read:
   45         397.334 Treatment-based drug court programs.—
   46         (3)(a) Entry into any postadjudicatory treatment-based drug
   47  court program as a condition of probation or community control
   48  pursuant to s. 948.01, s. 948.06, or s. 948.20 must be based
   49  upon the sentencing court’s assessment of the defendant’s
   50  criminal history, substance abuse screening outcome, amenability
   51  to the services of the program, total sentence points, the
   52  recommendation of the state attorney and the victim, if any, and
   53  the defendant’s agreement to enter the program.
   54         (b) An offender who is sentenced to a postadjudicatory drug
   55  court program and who, while a drug court participant, is the
   56  subject of a violation of probation or community control under
   57  s. 948.06, based solely upon a failed or suspect substance abuse
   58  test administered pursuant to s. 948.01 or s. 948.03, shall have
   59  the violation of probation or community control heard by the
   60  judge presiding over the postadjudicatory drug court program.
   61  The judge shall dispose of any such violation, after a hearing
   62  on or admission of the violation, as he or she deems appropriate
   63  if the resulting sentence or conditions are lawful.
   64         (6)(a)(5) Contingent upon an annual appropriation by the
   65  Legislature, each judicial circuit shall establish, at a
   66  minimum, one coordinator position for the treatment-based drug
   67  court program within the state courts system to coordinate the
   68  responsibilities of the participating agencies and service
   69  providers. Each coordinator shall provide direct support to the
   70  treatment-based drug court program by providing coordination
   71  between the multidisciplinary team and the judiciary, providing
   72  case management, monitoring compliance of the participants in
   73  the treatment-based drug court program with court requirements,
   74  and providing program evaluation and accountability.
   75         (b) Each circuit shall report sufficient client-level and
   76  programmatic data to the Office of State Courts Administrator
   77  annually for purposes of program evaluation. Client-level data
   78  include primary offenses that resulted in the drug court
   79  referral or sentence, treatment compliance, completion status
   80  and reasons for failure to complete, offenses committed during
   81  treatment and the sanctions imposed, frequency of court
   82  appearances, and units of service. Programmatic data include
   83  referral and screening procedures, eligibility criteria, type
   84  and duration of treatment offered, and residential treatment
   85  resources.
   86         Section 2. Subsection (3) of section 921.0026, Florida
   87  Statutes, is amended, and paragraph (m) is added to subsection
   88  (2) of that section, to read:
   89         921.0026 Mitigating circumstances.—This section applies to
   90  any felony offense, except any capital felony, committed on or
   91  after October 1, 1998.
   92         (2) Mitigating circumstances under which a departure from
   93  the lowest permissible sentence is reasonably justified include,
   94  but are not limited to:
   95         (m) The defendant’s offense is a nonviolent felony, the
   96  defendant’s Criminal Punishment Code scoresheet total sentence
   97  points under s. 921.0024 are 52 points or fewer, and the court
   98  determines that the defendant is amenable to the services of a
   99  postadjudicatory treatment-based drug court program and is
  100  otherwise qualified to participate in the program as part of the
  101  sentence. For purposes of this paragraph, the term “nonviolent
  102  felony” has the same meaning as provided in s. 948.08(6).
  103         (3) Except as provided in paragraph (2)(m), the defendant’s
  104  substance abuse or addiction, including intoxication at the time
  105  of the offense, is not a mitigating factor under subsection (2)
  106  and does not, under any circumstances, justify a downward
  107  departure from the permissible sentencing range.
  108         Section 3. Subsection (7) is added to section 948.01,
  109  Florida Statutes, to read:
  110         948.01 When court may place defendant on probation or into
  111  community control.—
  112         (7)(a) Notwithstanding s. 921.0024 and effective for
  113  offenses committed on or after July 1, 2009, the sentencing
  114  court may place the defendant into a postadjudicatory treatment
  115  based drug court program if the defendant’s Criminal Punishment
  116  Code scoresheet total sentence points under s. 921.0024 are 52
  117  points or fewer and the defendant is a nonviolent felony
  118  offender, amenable to substance abuse treatment, and otherwise
  119  qualifies under s. 397.334(3). The satisfactory completion of
  120  the program shall be a condition of the defendant’s probation or
  121  community control. As used in this subsection, the term
  122  “nonviolent felony” means a third-degree felony violation under
  123  chapter 810 or any other felony offense that is not a forcible
  124  felony as defined in s. 776.08.
  125         (b) The defendant must be fully advised of the purpose of
  126  the program and the defendant must agree to enter the program.
  127  The original sentencing court shall relinquish jurisdiction of
  128  the defendant’s case to the postadjudicatory drug court program
  129  until the defendant is no longer active in the program, the case
  130  is returned to the sentencing court due to the defendant’s
  131  termination from the program for failure to comply with the
  132  terms thereof, or the defendant’s sentence is completed.
  133         Section 4. Paragraph (i) is added to subsection (2) of
  134  section 948.06, Florida Statutes, to read:
  135         948.06 Violation of probation or community control;
  136  revocation; modification; continuance; failure to pay
  137  restitution or cost of supervision.—
  138         (2)
  139         (i)1. Notwithstanding s. 921.0024 and effective for
  140  offenses committed on or after July 1, 2009, the court may order
  141  the defendant to successfully complete a postadjudicatory
  142  treatment-based drug court program if:
  143         a. The court finds or the offender admits that the offender
  144  has violated his or her community control or probation and the
  145  violation was due only to a failed or suspect substance abuse
  146  test;
  147         b. The offender’s Criminal Punishment Code scoresheet total
  148  sentence points under s. 921.0024 are 52 points or fewer after
  149  including points for the violation;
  150         c. The underlying offense is a nonviolent felony. As used
  151  in this subsection, the term “nonviolent felony” means a third
  152  degree felony violation under chapter 810 or any other felony
  153  offense that is not a forcible felony as defined in s. 776.08;
  154         d. The court determines that the offender is amenable to
  155  the services of a postadjudicatory treatment-based drug court
  156  program;
  157         e. The court has explained the purpose of the program to
  158  the offender and the offender has agreed to participate; and
  159         f. The offender is otherwise qualified to participate in
  160  the program under the provisions of s. 397.334(3).
  161         2. After the court orders the modification of community
  162  control or probation, the original sentencing court shall
  163  relinquish jurisdiction of the offender’s case to the
  164  postadjudicatory treatment-based drug court program until the
  165  offender is no longer active in the program, the case is
  166  returned to the sentencing court due to the offender’s
  167  termination from the program for failure to comply with the
  168  terms thereof, or the offender’s sentence is completed.
  169         Section 5. Paragraphs (a), (b), and (c) of subsection (6)
  170  of section 948.08, Florida Statutes, are amended to read:
  171         948.08 Pretrial intervention program.—
  172         (6)(a) For purposes of this subsection, the term
  173  “nonviolent felony” means a third-degree felony violation of
  174  chapter 810 or any other felony offense that is not a forcible
  175  felony as defined in s. 776.08. Notwithstanding any provision of
  176  this section, a person who is charged with a nonviolent felony
  177  and is identified as having a substance abuse problem or is
  178  charged with a felony of the second or third degree for purchase
  179  or possession of a controlled substance under chapter 893,
  180  prostitution, tampering with evidence, solicitation for purchase
  181  of a controlled substance, or obtaining a prescription by fraud;
  182  who has not been charged with a crime involving violence,
  183  including, but not limited to, murder, sexual battery, robbery,
  184  carjacking, home-invasion robbery, or any other crime involving
  185  violence; and who has not previously been convicted of a felony
  186  nor been admitted to a felony pretrial program referred to in
  187  this section is eligible for voluntary admission into a pretrial
  188  substance abuse education and treatment intervention program,
  189  including a treatment-based drug court program established
  190  pursuant to s. 397.334, approved by the chief judge of the
  191  circuit, for a period of not less than 1 year in duration, upon
  192  motion of either party or the court’s own motion, except:
  193         1. If a defendant was previously offered admission to a
  194  pretrial substance abuse education and treatment intervention
  195  program at any time prior to trial and the defendant rejected
  196  that offer on the record, then the court or the state attorney
  197  may deny the defendant’s admission to such a program.
  198         2. If the state attorney believes that the facts and
  199  circumstances of the case suggest the defendant’s involvement in
  200  the dealing and selling of controlled substances, the court
  201  shall hold a preadmission hearing. If the state attorney
  202  establishes, by a preponderance of the evidence at such hearing,
  203  that the defendant was involved in the dealing or selling of
  204  controlled substances, the court shall deny the defendant’s
  205  admission into a pretrial intervention program.
  206         (b) While enrolled in a pretrial intervention program
  207  authorized by this subsection, the participant is subject to a
  208  coordinated strategy developed by a drug court team under s.
  209  397.334(4) s. 397.334(3). The coordinated strategy may include a
  210  protocol of sanctions that may be imposed upon the participant
  211  for noncompliance with program rules. The protocol of sanctions
  212  may include, but is not limited to, placement in a substance
  213  abuse treatment program offered by a licensed service provider
  214  as defined in s. 397.311 or in a jail-based treatment program or
  215  serving a period of incarceration within the time limits
  216  established for contempt of court. The coordinated strategy must
  217  be provided in writing to the participant before the participant
  218  agrees to enter into a pretrial treatment-based drug court
  219  program or other pretrial intervention program. Any person whose
  220  charges are dismissed after successful completion of the
  221  treatment-based drug court program, if otherwise eligible, may
  222  have his or her arrest record and plea of nolo contendere to the
  223  dismissed charges expunged under s. 943.0585.
  224         (c) At the end of the pretrial intervention period, the
  225  court shall consider the recommendation of the administrator
  226  pursuant to subsection (5) and the recommendation of the state
  227  attorney as to disposition of the pending charges. The court
  228  shall determine, by written finding, whether the defendant has
  229  successfully completed the pretrial intervention program.
  230  Notwithstanding the coordinated strategy developed by a drug
  231  court team pursuant to s. 397.334(4) s. 397.334(3), if the court
  232  finds that the defendant has not successfully completed the
  233  pretrial intervention program, the court may order the person to
  234  continue in education and treatment, which may include substance
  235  abuse treatment programs offered by licensed service providers
  236  as defined in s. 397.311 or jail-based treatment programs, or
  237  order that the charges revert to normal channels for
  238  prosecution. The court shall dismiss the charges upon a finding
  239  that the defendant has successfully completed the pretrial
  240  intervention program.
  241         Section 6. Paragraph (b) of subsection (1) and subsection
  242  (2) of section 948.16, Florida Statutes, are amended to read:
  243         948.16 Misdemeanor pretrial substance abuse education and
  244  treatment intervention program.—
  245         (1)
  246         (b) While enrolled in a pretrial intervention program
  247  authorized by this section, the participant is subject to a
  248  coordinated strategy developed by a drug court team under s.
  249  397.334(4) s. 397.334(3). The coordinated strategy may include a
  250  protocol of sanctions that may be imposed upon the participant
  251  for noncompliance with program rules. The protocol of sanctions
  252  may include, but is not limited to, placement in a substance
  253  abuse treatment program offered by a licensed service provider
  254  as defined in s. 397.311 or in a jail-based treatment program or
  255  serving a period of incarceration within the time limits
  256  established for contempt of court. The coordinated strategy must
  257  be provided in writing to the participant before the participant
  258  agrees to enter into a pretrial treatment-based drug court
  259  program or other pretrial intervention program. Any person whose
  260  charges are dismissed after successful completion of the
  261  treatment-based drug court program, if otherwise eligible, may
  262  have his or her arrest record and plea of nolo contendere to the
  263  dismissed charges expunged under s. 943.0585.
  264         (2) At the end of the pretrial intervention period, the
  265  court shall consider the recommendation of the treatment program
  266  and the recommendation of the state attorney as to disposition
  267  of the pending charges. The court shall determine, by written
  268  finding, whether the defendant successfully completed the
  269  pretrial intervention program. Notwithstanding the coordinated
  270  strategy developed by a drug court team pursuant to s.
  271  397.334(4) s. 397.334(3), if the court finds that the defendant
  272  has not successfully completed the pretrial intervention
  273  program, the court may order the person to continue in education
  274  and treatment or return the charges to the criminal docket for
  275  prosecution. The court shall dismiss the charges upon finding
  276  that the defendant has successfully completed the pretrial
  277  intervention program.
  278         Section 7. Section 948.20, Florida Statutes, is amended to
  279  read:
  280         948.20 Drug offender probation.—If it appears to the court
  281  upon a hearing that the defendant is a chronic substance abuser
  282  whose criminal conduct is a violation of s. 893.13(2)(a) or
  283  (6)(a), or other nonviolent felony if such nonviolent felony is
  284  committed on or after July 1, 2009, and notwithstanding s.
  285  921.0024 the defendant’s Criminal Punishment Code scoresheet
  286  total sentence points are 52 points or fewer, the court may
  287  either adjudge the defendant guilty or stay and withhold the
  288  adjudication of guilt.; and, In either case, the court it may
  289  also stay and withhold the imposition of sentence and place the
  290  defendant on drug offender probation or into a postadjudicatory
  291  treatment-based drug court program if the defendant otherwise
  292  qualifies. As used in this section, the term “nonviolent felony”
  293  means a third-degree felony violation under chapter 810 or any
  294  other felony offense that is not a forcible felony as defined in
  295  s. 776.08.
  296         (1) The Department of Corrections shall develop and
  297  administer a drug offender probation program which emphasizes a
  298  combination of treatment and intensive community supervision
  299  approaches and which includes provision for supervision of
  300  offenders in accordance with a specific treatment plan. The
  301  program may include the use of graduated sanctions consistent
  302  with the conditions imposed by the court. Drug offender
  303  probation status shall include surveillance and random drug
  304  testing, and may include those measures normally associated with
  305  community control, except that specific treatment conditions and
  306  other treatment approaches necessary to monitor this population
  307  may be ordered.
  308         (2) Offenders placed on drug offender probation are subject
  309  to revocation of probation as provided in s. 948.06.
  310         Section 8. Subsections (2) and (3) of section 985.345,
  311  Florida Statutes, are amended to read:
  312         985.345 Delinquency pretrial intervention program.—
  313         (2) While enrolled in a delinquency pretrial intervention
  314  program authorized by this section, a child is subject to a
  315  coordinated strategy developed by a drug court team under s.
  316  397.334(4) s. 397.334(3). The coordinated strategy may include a
  317  protocol of sanctions that may be imposed upon the child for
  318  noncompliance with program rules. The protocol of sanctions may
  319  include, but is not limited to, placement in a substance abuse
  320  treatment program offered by a licensed service provider as
  321  defined in s. 397.311 or serving a period of secure detention
  322  under this chapter. The coordinated strategy must be provided in
  323  writing to the child before the child agrees to enter the
  324  pretrial treatment-based drug court program or other pretrial
  325  intervention program. Any child whose charges are dismissed
  326  after successful completion of the treatment-based drug court
  327  program, if otherwise eligible, may have his or her arrest
  328  record and plea of nolo contendere to the dismissed charges
  329  expunged under s. 943.0585.
  330         (3) At the end of the delinquency pretrial intervention
  331  period, the court shall consider the recommendation of the state
  332  attorney and the program administrator as to disposition of the
  333  pending charges. The court shall determine, by written finding,
  334  whether the child has successfully completed the delinquency
  335  pretrial intervention program. Notwithstanding the coordinated
  336  strategy developed by a drug court team pursuant to s.
  337  397.334(4) s. 397.334(3), if the court finds that the child has
  338  not successfully completed the delinquency pretrial intervention
  339  program, the court may order the child to continue in an
  340  education, treatment, or urine monitoring program if resources
  341  and funding are available or order that the charges revert to
  342  normal channels for prosecution. The court may dismiss the
  343  charges upon a finding that the child has successfully completed
  344  the delinquency pretrial intervention program.
  345         Section 9. The Legislature intends to monitor and evaluate
  346  the implementation and effectiveness of postadjudicatory
  347  treatment-based drug court programs, particularly as they
  348  identify and serve offenders pursuant to ss. 948.01(7) and
  349  948.06(2)(i), Florida Statutes. The Office of Program Policy
  350  Analysis and Government Accountability shall evaluate the
  351  effectiveness of postadjudicatory treatment-based drug court
  352  programs and issue a report of its findings and recommendations
  353  to the Legislature by October 1, 2010.
  354         Section 10. This act shall take effect July 1, 2009.