Florida Senate - 2009                                    SB 2206
       
       
       
       By Senator Siplin
       
       
       
       
       19-01128-09                                           20092206__
    1                        A bill to be entitled                      
    2         An act relating to the restraint of children; amending
    3         s. 985.35, F.S.; requiring the Department of Juvenile
    4         Justice to adopt rules governing the procedures that
    5         may be used to restrain a child upon his or her
    6         arrival at the courthouse; prohibiting the use of
    7         instruments of restraint on a child after the child
    8         arrives at the courthouse; prohibiting subjecting a
    9         child to extended periods of isolation; prohibiting
   10         the use of instruments of restraint upon a child
   11         during any court proceeding; providing specified
   12         exemptions; amending s. 985.483, F.S.; conforming a
   13         cross-reference; providing an effective date.
   14  
   15  Be It Enacted by the Legislature of the State of Florida:
   16  
   17         Section 1. Section 985.35, Florida Statutes, is amended to
   18  read:
   19         985.35 Adjudicatory hearings; withheld adjudications;
   20  orders of adjudication.—
   21         (1) The adjudicatory hearing must be held as soon as
   22  practicable after the petition alleging that a child has
   23  committed a delinquent act or violation of law is filed and in
   24  accordance with the Florida Rules of Juvenile Procedure; but
   25  reasonable delay for the purpose of investigation, discovery, or
   26  procuring counsel or witnesses shall be granted. If the child is
   27  being detained, the time limitations in s. 985.26(2) and (3)
   28  apply. The department shall adopt by rule procedures for
   29  restraining a child upon his or her arrival at the courthouse.
   30  The rules must prohibit the use of mechanical devices and
   31  unreasonable restraints. In addition, a child may not be subject
   32  to extended periods of isolation.
   33         (2) Adjudicatory hearings must shall be conducted without a
   34  jury by the court, applying in delinquency cases the rules of
   35  evidence in use in criminal cases; adjourning the hearings from
   36  time to time as necessary; and conducting a fundamentally fair
   37  hearing in language understandable, to the fullest extent
   38  practicable, to the child before the court.
   39         (a) In a hearing on a petition alleging that a child has
   40  committed a delinquent act or violation of law, the evidence
   41  must establish the findings beyond a reasonable doubt.
   42         (b) The child is entitled to the opportunity to introduce
   43  evidence and otherwise be heard in the child's own behalf and to
   44  cross-examine witnesses.
   45         (c) A child charged with a delinquent act or violation of
   46  law must be afforded all rights against self-incrimination.
   47  Evidence illegally seized or obtained may not be received to
   48  establish the allegations against the child.
   49         (3)Instruments of restraint, such as handcuffs, chains,
   50  irons, or straitjackets, may not be used on a child during any
   51  court proceeding and must be removed when the child appears
   52  before the court unless:
   53         (a)The court finds that the child is likely to attempt to
   54  escape during a transfer or a hearing;
   55         (b)The court is unable to find a less restrictive
   56  alternative that, if available, would prevent physical harm to
   57  personnel of the department, law enforcement officers, or the
   58  bailiff;
   59         (c)The child is charged with a capital offense; or
   60         (d)The child has a history of disruptive behavior and
   61  there is a likelihood that the child will cause bodily harm to
   62  himself or herself, or to others.
   63  
   64  The department must comply with the Protective Action Response
   65  Policy adopted pursuant to s. 985.645(2) whenever mechanical
   66  restraints are used.
   67         (4)(3) If the court finds that the child named in a
   68  petition has not committed a delinquent act or violation of law,
   69  it shall enter an order so finding and dismissing the case.
   70         (5)(4) If the court finds that the child named in the
   71  petition has committed a delinquent act or violation of law, it
   72  may, in its discretion, enter an order stating the facts upon
   73  which its finding is based but withholding adjudication of
   74  delinquency.
   75         (a) Upon withholding adjudication of delinquency, the court
   76  may place the child in a probation program under the supervision
   77  of the department or under the supervision of any other person
   78  or agency specifically authorized and appointed by the court.
   79  The court may, as a condition of the program, impose as a
   80  penalty component restitution in money or in kind, community
   81  service, a curfew, urine monitoring, revocation or suspension of
   82  the driver's license of the child, or other nonresidential
   83  punishment appropriate to the offense, and may impose as a
   84  rehabilitative component a requirement of participation in
   85  substance abuse treatment, or school or other educational
   86  program attendance.
   87         (b) If the child is attending public school and the court
   88  finds that the victim or a sibling of the victim in the case was
   89  assigned to attend or is eligible to attend the same school as
   90  the child, the court order shall include a finding pursuant to
   91  the proceedings described in s. 985.455, regardless of whether
   92  adjudication is withheld.
   93         (c) If the court later finds that the child has not
   94  complied with the rules, restrictions, or conditions of the
   95  community-based program, the court may, after a hearing to
   96  establish the lack of compliance, but without further evidence
   97  of the state of delinquency, enter an adjudication of
   98  delinquency and shall thereafter have full authority under this
   99  chapter to deal with the child as adjudicated.
  100         (6)(5) If the court finds that the child named in a
  101  petition has committed a delinquent act or violation of law, but
  102  elects not to proceed under subsection (5) (4), it shall
  103  incorporate that finding in an order of adjudication of
  104  delinquency entered in the case, briefly stating the facts upon
  105  which the finding is made, and the court shall thereafter have
  106  full authority under this chapter to deal with the child as
  107  adjudicated.
  108         (7)(6) Except as the term “conviction” is used in chapter
  109  322, and except for use in a subsequent proceeding under this
  110  chapter, an adjudication of delinquency by a court with respect
  111  to any child who has committed a delinquent act or violation of
  112  law shall not be deemed a conviction; nor shall the child be
  113  deemed to have been found guilty or to be a criminal by reason
  114  of that adjudication; nor shall that adjudication operate to
  115  impose upon the child any of the civil disabilities ordinarily
  116  imposed by or resulting from conviction or to disqualify or
  117  prejudice the child in any civil service application or
  118  appointment, with the exception of the use of records of
  119  proceedings under this chapter as provided in s. 985.045(4).
  120         (8)(7) Notwithstanding any other provision of law, an
  121  adjudication of delinquency for an offense classified as a
  122  felony shall disqualify a person from lawfully possessing a
  123  firearm until such person reaches 24 years of age.
  124         Section 2. Subsection (2) of section 985.483, Florida
  125  Statutes, is amended to read:
  126         985.483 Intensive residential treatment program for
  127  offenders less than 13 years of age.—
  128         (2) DETERMINATION.—After a child has been adjudicated
  129  delinquent under s. 985.35(6) s. 985.35(5), the court shall
  130  determine whether the child is eligible for an intensive
  131  residential treatment program for offenders less than 13 years
  132  of age under subsection (1). If the court determines that the
  133  child does not meet the criteria, ss. 985.435, 985.437, 985.439,
  134  985.441, 985.445, 985.45, and 985.455 shall apply.
  135         Section 3. This act shall take effect July 1, 2009.