Florida Senate - 2010 SB 296
By Senator Wise
5-00407-10 2010296__
1 A bill to be entitled
2 An act relating to state attorneys; amending s.
3 27.366, F.S.; deleting a provision that requires each
4 state attorney to report why a case-qualified
5 defendant did not receive the mandatory minimum prison
6 sentence in cases involving the possession or use of a
7 weapon; amending s. 775.082, F.S.; deleting a
8 provision that requires each state attorney to report
9 why a case-qualified defendant did not receive the
10 mandatory minimum prison sentence in cases involving
11 certain specified offenses; repealing s. 775.08401,
12 F.S., relating to criteria to be used when state
13 attorneys decide to pursue habitual felony offenders
14 or habitual violent felony offenders; repealing s.
15 775.087(5), relating to a provision that requires each
16 state attorney to report why a case-qualified
17 defendant did not receive the mandatory minimum prison
18 sentence in cases involving certain specified
19 offenses; amending s. 903.286, F.S.; requiring the
20 clerk of the court to withhold sufficient funds to pay
21 any unpaid costs of prosecution from the return of a
22 cash bond posted on behalf of a criminal defendant by
23 a person other than a bail bond agent; amending s.
24 938.27, F.S.; providing that persons whose cases are
25 disposed of under any diversionary alternative are
26 liable for payment of the costs of prosecution;
27 deleting provisions regarding the burden of
28 establishing financial resources of the defendant;
29 requiring the clerk of court to separately record each
30 assessment and payment of costs of prosecution;
31 requiring the clerk to prepare a monthly report to the
32 state attorney’s office of the recorded assessments
33 and payments; amending s. 943.0585, F.S.; requiring a
34 person to remit a processing fee to the state
35 attorney’s office in order to receive a certificate of
36 eligibility for expunction of a criminal history
37 record; amending s. 943.059, F.S.; requiring a person
38 to remit a processing fee to the state attorney’s
39 office in order to receive a certificate of
40 eligibility for sealing a criminal history record;
41 repealing s. 985.557(4), F.S., relating to direct-file
42 policies and guidelines for juveniles; amending s.
43 775.0843, F.S.; conforming a cross-reference;
44 providing an effective date.
45
46 Be It Enacted by the Legislature of the State of Florida:
47
48 Section 1. Section 27.366, Florida Statutes, is amended to
49 read:
50 27.366 Legislative intent and policy in cases meeting
51 criteria of s. 775.087(2) and (3); report.—
52 (1) It is the intent of the Legislature that convicted
53 criminal offenders who meet the criteria in s. 775.087(2) and
54 (3) be sentenced to the minimum mandatory prison terms provided
55 herein. It is the intent of the Legislature to establish zero
56 tolerance of criminals who use, threaten to use, or avail
57 themselves of firearms in order to commit crimes and thereby
58 demonstrate their lack of value for human life. It is also the
59 intent of the Legislature that prosecutors should appropriately
60 exercise their discretion in those cases in which the offenders’
61 possession of the firearm is incidental to the commission of a
62 crime and not used in furtherance of the crime, used in order to
63 commit the crime, or used in preparation to commit the crime.
64 For every case in which the offender meets the criteria in this
65 act and does not receive the mandatory minimum prison sentence,
66 the state attorney must explain the sentencing deviation in
67 writing and place such explanation in the case file maintained
68 by the state attorney. On a quarterly basis, each state attorney
69 shall submit copies of deviation memoranda regarding offenses
70 committed on or after the effective date of this act to the
71 President of the Florida Prosecuting Attorneys Association, Inc.
72 The association must maintain such information and make such
73 information available to the public upon request for at least a
74 10-year period.
75 (2) Effective July 1, 2000, each state attorney shall
76 annually report to the Speaker of the House of Representatives,
77 the President of the Senate, and the Executive Office of the
78 Governor regarding the prosecution and sentencing of offenders
79 who met the criteria in s. 775.087(2) and (3). The report must
80 categorize the defendants by age, gender, race, and ethnicity.
81 Cases in which a final disposition has not yet been reached
82 shall be reported in a subsequent annual report.
83 Section 2. Paragraph (d) of subsection (9) of section
84 775.082, Florida Statutes, is amended to read:
85 775.082 Penalties; applicability of sentencing structures;
86 mandatory minimum sentences for certain reoffenders previously
87 released from prison.—
88 (9)
89 (d)1. It is the intent of the Legislature that offenders
90 previously released from prison who meet the criteria in
91 paragraph (a) be punished to the fullest extent of the law and
92 as provided in this subsection, unless the state attorney
93 determines that extenuating circumstances exist which preclude
94 the just prosecution of the offender, including whether the
95 victim recommends that the offender not be sentenced as provided
96 in this subsection.
97 2. For every case in which the offender meets the criteria
98 in paragraph (a) and does not receive the mandatory minimum
99 prison sentence, the state attorney must explain the sentencing
100 deviation in writing and place such explanation in the case file
101 maintained by the state attorney. On an annual basis, each state
102 attorney shall submit copies of deviation memoranda regarding
103 offenses committed on or after the effective date of this
104 subsection, to the president of the Florida Prosecuting
105 Attorneys Association, Inc. The association must maintain such
106 information, and make such information available to the public
107 upon request, for at least a 10-year period.
108 Section 3. Section 775.08401, Florida Statutes, is
109 repealed.
110 Section 4. Subsection (5) of section 775.087, Florida
111 Statutes, is repealed.
112 Section 5. Subsection (1) of section 903.286, Florida
113 Statutes, is amended to read:
114 903.286 Return of cash bond; requirement to withhold unpaid
115 fines, fees, court costs; cash bond forms.—
116 (1) Notwithstanding s. 903.31(2), the clerk of the court
117 shall withhold from the return of a cash bond posted on behalf
118 of a criminal defendant by a person other than a bail bond agent
119 licensed pursuant to chapter 648 sufficient funds to pay any
120 unpaid court fees, court costs, costs of prosecution, and
121 criminal penalties. If sufficient funds are not available to pay
122 all unpaid court fees, court costs, costs of prosecution, and
123 criminal penalties, the clerk of the court shall immediately
124 obtain payment from the defendant or enroll the defendant in a
125 payment plan pursuant to s. 28.246.
126 Section 6. Section 938.27, Florida Statutes, is amended to
127 read:
128 938.27 Judgment for costs on conviction and disposition.—
129 (1) In all criminal and violation-of-probation or
130 community-control cases, convicted persons and persons whose
131 cases are disposed of under any diversionary alternative are
132 liable for payment of the costs of prosecution, including
133 investigative costs incurred by law enforcement agencies, by
134 fire departments for arson investigations, and by investigations
135 of the Department of Financial Services or the Office of
136 Financial Regulation of the Financial Services Commission, if
137 requested by such agencies. The court shall include these costs
138 in every judgment rendered against the convicted person. For
139 purposes of this section, “convicted” means a determination of
140 guilt, or of violation of probation or community control, which
141 is a result of a plea, trial, or violation proceeding,
142 regardless of whether adjudication is withheld.
143 (2)(a) The court shall impose the costs of prosecution and
144 investigation notwithstanding the defendant’s present ability to
145 pay. The court shall require the defendant to pay the costs
146 within a specified period or in specified installments.
147 (b) The end of such period or the last such installment
148 shall not be later than:
149 1. The end of the period of probation or community control,
150 if probation or community control is ordered;
151 2. Five years after the end of the term of imprisonment
152 imposed, if the court does not order probation or community
153 control; or
154 3. Five years after the date of sentencing in any other
155 case.
156
157 However, in no event shall the obligation to pay any unpaid
158 amounts expire if not paid in full within the period specified
159 in this paragraph.
160 (c) If not otherwise provided by the court under this
161 section, costs shall be paid immediately.
162 (3) If a defendant is placed on probation or community
163 control, payment of any costs under this section shall be a
164 condition of such probation or community control. The court may
165 revoke probation or community control if the defendant fails to
166 pay these costs.
167 (4) Any dispute as to the proper amount or type of costs
168 shall be resolved by the court by the preponderance of the
169 evidence. The burden of demonstrating the amount of costs
170 incurred is on the state attorney. The burden of demonstrating
171 the financial resources of the defendant and the financial needs
172 of the defendant is on the defendant. The burden of
173 demonstrating such other matters as the court deems appropriate
174 is upon the party designated by the court as justice requires.
175 (5) Any default in payment of costs may be collected by any
176 means authorized by law for enforcement of a judgment.
177 (6) The clerk of the court shall collect and dispense cost
178 payments in any case. The clerk of court shall separately record
179 each assessment and the payment of costs of prosecution. Costs
180 of prosecution must be assessed with respect to each case number
181 before the court. The clerk shall provide a monthly report to
182 the state attorney’s office of the assessments and payments
183 recorded.
184 (7) Investigative costs that are recovered shall be
185 returned to the appropriate investigative agency that incurred
186 the expense. Such costs include actual expenses incurred in
187 conducting the investigation and prosecution of the criminal
188 case; however, costs may also include the salaries of permanent
189 employees. Any investigative costs recovered on behalf of a
190 state agency must be remitted to the Department of Revenue for
191 deposit in the agency operating trust fund, and a report of the
192 payment must be sent to the agency, except that any
193 investigative costs recovered on behalf of the Department of Law
194 Enforcement shall be deposited in the department’s Forfeiture
195 and Investigative Support Trust Fund under s. 943.362.
196 (8) Costs for the state attorney shall be set in all cases
197 at no less than $50 per case when a misdemeanor or criminal
198 traffic offense is charged and no less than $100 per case when a
199 felony offense is charged, including a proceeding in which the
200 underlying offense is a violation of probation or community
201 control. The court may set a higher amount upon a showing of
202 sufficient proof of higher costs incurred. Costs recovered on
203 behalf of the state attorney under this section shall be
204 deposited into the state attorney’s grants and donations trust
205 fund to be used during the fiscal year in which the funds are
206 collected, or in any subsequent fiscal year, for actual expenses
207 incurred in investigating and prosecuting criminal cases, which
208 may include the salaries of permanent employees, or for any
209 other purpose authorized by the Legislature.
210 Section 7. Present paragraphs (c) through (h) of subsection
211 (2) of section 943.0585, Florida Statutes, are redesignated as
212 paragraphs (d) through (i), respectively, and a new paragraph
213 (c) is added to that subsection, to read:
214 943.0585 Court-ordered expunction of criminal history
215 records.—The courts of this state have jurisdiction over their
216 own procedures, including the maintenance, expunction, and
217 correction of judicial records containing criminal history
218 information to the extent such procedures are not inconsistent
219 with the conditions, responsibilities, and duties established by
220 this section. Any court of competent jurisdiction may order a
221 criminal justice agency to expunge the criminal history record
222 of a minor or an adult who complies with the requirements of
223 this section. The court shall not order a criminal justice
224 agency to expunge a criminal history record until the person
225 seeking to expunge a criminal history record has applied for and
226 received a certificate of eligibility for expunction pursuant to
227 subsection (2). A criminal history record that relates to a
228 violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
229 s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
230 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
231 893.135, s. 916.1075, a violation enumerated in s. 907.041, or
232 any violation specified as a predicate offense for registration
233 as a sexual predator pursuant to s. 775.21, without regard to
234 whether that offense alone is sufficient to require such
235 registration, or for registration as a sexual offender pursuant
236 to s. 943.0435, may not be expunged, without regard to whether
237 adjudication was withheld, if the defendant was found guilty of
238 or pled guilty or nolo contendere to the offense, or if the
239 defendant, as a minor, was found to have committed, or pled
240 guilty or nolo contendere to committing, the offense as a
241 delinquent act. The court may only order expunction of a
242 criminal history record pertaining to one arrest or one incident
243 of alleged criminal activity, except as provided in this
244 section. The court may, at its sole discretion, order the
245 expunction of a criminal history record pertaining to more than
246 one arrest if the additional arrests directly relate to the
247 original arrest. If the court intends to order the expunction of
248 records pertaining to such additional arrests, such intent must
249 be specified in the order. A criminal justice agency may not
250 expunge any record pertaining to such additional arrests if the
251 order to expunge does not articulate the intention of the court
252 to expunge a record pertaining to more than one arrest. This
253 section does not prevent the court from ordering the expunction
254 of only a portion of a criminal history record pertaining to one
255 arrest or one incident of alleged criminal activity.
256 Notwithstanding any law to the contrary, a criminal justice
257 agency may comply with laws, court orders, and official requests
258 of other jurisdictions relating to expunction, correction, or
259 confidential handling of criminal history records or information
260 derived therefrom. This section does not confer any right to the
261 expunction of any criminal history record, and any request for
262 expunction of a criminal history record may be denied at the
263 sole discretion of the court.
264 (2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.—Prior to
265 petitioning the court to expunge a criminal history record, a
266 person seeking to expunge a criminal history record shall apply
267 to the department for a certificate of eligibility for
268 expunction. The department shall, by rule adopted pursuant to
269 chapter 120, establish procedures pertaining to the application
270 for and issuance of certificates of eligibility for expunction.
271 A certificate of eligibility for expunction is valid for 12
272 months after the date stamped on the certificate when issued by
273 the department. After that time, the petitioner must reapply to
274 the department for a new certificate of eligibility. Eligibility
275 for a renewed certification of eligibility must be based on the
276 status of the applicant and the law in effect at the time of the
277 renewal application. The department shall issue a certificate of
278 eligibility for expunction to a person who is the subject of a
279 criminal history record if that person:
280 (c) Remits a $75 processing fee to the state attorney’s
281 office to be deposited into the state attorney’s grants and
282 donations trust fund unless the fee is waived by the state
283 attorney.
284 Section 8. Present paragraphs (c) through (f) of subsection
285 (2) of section 943.059, Florida Statutes, are redesignated as
286 paragraphs (d) through (g), respectively, and a new paragraph
287 (c) is added to that subsection, to read:
288 943.059 Court-ordered sealing of criminal history records.
289 The courts of this state shall continue to have jurisdiction
290 over their own procedures, including the maintenance, sealing,
291 and correction of judicial records containing criminal history
292 information to the extent such procedures are not inconsistent
293 with the conditions, responsibilities, and duties established by
294 this section. Any court of competent jurisdiction may order a
295 criminal justice agency to seal the criminal history record of a
296 minor or an adult who complies with the requirements of this
297 section. The court shall not order a criminal justice agency to
298 seal a criminal history record until the person seeking to seal
299 a criminal history record has applied for and received a
300 certificate of eligibility for sealing pursuant to subsection
301 (2). A criminal history record that relates to a violation of s.
302 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
303 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
304 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
305 916.1075, a violation enumerated in s. 907.041, or any violation
306 specified as a predicate offense for registration as a sexual
307 predator pursuant to s. 775.21, without regard to whether that
308 offense alone is sufficient to require such registration, or for
309 registration as a sexual offender pursuant to s. 943.0435, may
310 not be sealed, without regard to whether adjudication was
311 withheld, if the defendant was found guilty of or pled guilty or
312 nolo contendere to the offense, or if the defendant, as a minor,
313 was found to have committed or pled guilty or nolo contendere to
314 committing the offense as a delinquent act. The court may only
315 order sealing of a criminal history record pertaining to one
316 arrest or one incident of alleged criminal activity, except as
317 provided in this section. The court may, at its sole discretion,
318 order the sealing of a criminal history record pertaining to
319 more than one arrest if the additional arrests directly relate
320 to the original arrest. If the court intends to order the
321 sealing of records pertaining to such additional arrests, such
322 intent must be specified in the order. A criminal justice agency
323 may not seal any record pertaining to such additional arrests if
324 the order to seal does not articulate the intention of the court
325 to seal records pertaining to more than one arrest. This section
326 does not prevent the court from ordering the sealing of only a
327 portion of a criminal history record pertaining to one arrest or
328 one incident of alleged criminal activity. Notwithstanding any
329 law to the contrary, a criminal justice agency may comply with
330 laws, court orders, and official requests of other jurisdictions
331 relating to sealing, correction, or confidential handling of
332 criminal history records or information derived therefrom. This
333 section does not confer any right to the sealing of any criminal
334 history record, and any request for sealing a criminal history
335 record may be denied at the sole discretion of the court.
336 (2) CERTIFICATE OF ELIGIBILITY FOR SEALING.—Prior to
337 petitioning the court to seal a criminal history record, a
338 person seeking to seal a criminal history record shall apply to
339 the department for a certificate of eligibility for sealing. The
340 department shall, by rule adopted pursuant to chapter 120,
341 establish procedures pertaining to the application for and
342 issuance of certificates of eligibility for sealing. A
343 certificate of eligibility for sealing is valid for 12 months
344 after the date stamped on the certificate when issued by the
345 department. After that time, the petitioner must reapply to the
346 department for a new certificate of eligibility. Eligibility for
347 a renewed certification of eligibility must be based on the
348 status of the applicant and the law in effect at the time of the
349 renewal application. The department shall issue a certificate of
350 eligibility for sealing to a person who is the subject of a
351 criminal history record provided that such person:
352 (c) Remits a $75 processing fee to the state attorney’s
353 office to be deposited into the state attorney’s grants and
354 donations trust fund unless the fee is waived by the state
355 attorney.
356 Section 9. Subsection (4) of section 985.557, Florida
357 Statutes, is repealed.
358 Section 10. Subsection (5) of section 775.0843, Florida
359 Statutes, is amended to read:
360 775.0843 Policies to be adopted for career criminal cases.—
361 (5) Each career criminal apprehension program shall
362 concentrate on the identification and arrest of career criminals
363 and the support of subsequent prosecution. The determination of
364 which suspected felony offenders shall be the subject of career
365 criminal apprehension efforts shall be made in accordance with
366 written target selection criteria selected by the individual law
367 enforcement agency and state attorney consistent with the
368 provisions of this section and s. ss. 775.08401 and 775.0842.
369 Section 11. This act shall take effect July 1, 2010.