Florida Senate - 2011                                    SB 1092
       
       
       
       By Senator Wise
       
       
       
       
       5-01169-11                                            20111092__
    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 quarterly submit deviation memoranda
    5         relating to offenders who are not sentenced to the
    6         mandatory minimum prison sentence in cases involving
    7         the possession or use of a weapon; amending s.
    8         775.082, F.S.; deleting a provision that requires each
    9         state attorney to quarterly submit deviation memoranda
   10         relating to why a defendant did not receive the
   11         mandatory minimum prison sentence in cases involving
   12         certain specified offenses; repealing s. 775.08401,
   13         F.S., relating to criteria to be used when state
   14         attorneys decide to pursue habitual felony offenders
   15         or habitual violent felony offenders; repealing s.
   16         775.087(5), F.S., relating to a provision that
   17         requires each state attorney to report why a case
   18         qualified defendant did not receive the mandatory
   19         minimum prison sentence in cases involving certain
   20         specified offenses; amending s. 938.27, F.S.; deleting
   21         a provision requiring that agencies request a
   22         convicted person to pay certain costs; deleting a
   23         provision regarding the burden of establishing
   24         financial resources of the defendant; repealing s.
   25         985.557(4), F.S., relating to direct-file policies and
   26         guidelines for juveniles; amending s. 775.0843, F.S.;
   27         conforming a cross-reference; providing an effective
   28         date.
   29  
   30  Be It Enacted by the Legislature of the State of Florida:
   31  
   32         Section 1. Section 27.366, Florida Statutes, is amended to
   33  read:
   34         27.366 Legislative intent and policy in cases meeting
   35  criteria of s. 775.087(2) and (3); report.—
   36         (1) It is the intent of the Legislature that convicted
   37  criminal offenders who meet the criteria in s. 775.087(2) and
   38  (3) be sentenced to the minimum mandatory prison terms provided
   39  herein. It is the intent of the Legislature to establish zero
   40  tolerance of criminals who use, threaten to use, or avail
   41  themselves of firearms in order to commit crimes and thereby
   42  demonstrate their lack of value for human life. It is also the
   43  intent of the Legislature that prosecutors should appropriately
   44  exercise their discretion in those cases in which the offenders’
   45  possession of the firearm is incidental to the commission of a
   46  crime and not used in furtherance of the crime, used in order to
   47  commit the crime, or used in preparation to commit the crime.
   48  For every case in which the offender meets the criteria in this
   49  act and does not receive the mandatory minimum prison sentence,
   50  the state attorney must explain the sentencing deviation in
   51  writing and place such explanation in the case file maintained
   52  by the state attorney. On a quarterly basis, each state attorney
   53  shall submit copies of deviation memoranda regarding offenses
   54  committed on or after the effective date of this act to the
   55  President of the Florida Prosecuting Attorneys Association, Inc.
   56  The association must maintain such information and make such
   57  information available to the public upon request for at least a
   58  10-year period.
   59         (2) Effective July 1, 2000, each state attorney shall
   60  annually report to the Speaker of the House of Representatives,
   61  the President of the Senate, and the Executive Office of the
   62  Governor regarding the prosecution and sentencing of offenders
   63  who met the criteria in s. 775.087(2) and (3). The report must
   64  categorize the defendants by age, gender, race, and ethnicity.
   65  Cases in which a final disposition has not yet been reached
   66  shall be reported in a subsequent annual report.
   67         Section 2. Paragraph (d) of subsection (9) of section
   68  775.082, Florida Statutes, is amended to read:
   69         775.082 Penalties; applicability of sentencing structures;
   70  mandatory minimum sentences for certain reoffenders previously
   71  released from prison.—
   72         (9)
   73         (d)1. It is the intent of the Legislature that offenders
   74  previously released from prison who meet the criteria in
   75  paragraph (a) be punished to the fullest extent of the law and
   76  as provided in this subsection, unless the state attorney
   77  determines that extenuating circumstances exist which preclude
   78  the just prosecution of the offender, including whether the
   79  victim recommends that the offender not be sentenced as provided
   80  in this subsection.
   81         2. For every case in which the offender meets the criteria
   82  in paragraph (a) and does not receive the mandatory minimum
   83  prison sentence, the state attorney must explain the sentencing
   84  deviation in writing and place such explanation in the case file
   85  maintained by the state attorney. On an annual basis, each state
   86  attorney shall submit copies of deviation memoranda regarding
   87  offenses committed on or after the effective date of this
   88  subsection, to the president of the Florida Prosecuting
   89  Attorneys Association, Inc. The association must maintain such
   90  information, and make such information available to the public
   91  upon request, for at least a 10-year period.
   92         Section 3. Section 775.08401, Florida Statutes, is
   93  repealed.
   94         Section 4. Subsection (5) of section 775.087, Florida
   95  Statutes, is repealed.
   96         Section 5. Section 938.27, Florida Statutes, is amended to
   97  read:
   98         938.27 Judgment for costs on conviction.—
   99         (1) In all criminal and violation-of-probation or
  100  community-control cases, convicted persons are liable for
  101  payment of the costs of prosecution, including investigative
  102  costs incurred by law enforcement agencies, by fire departments
  103  for arson investigations, and by investigations of the
  104  Department of Financial Services or the Office of Financial
  105  Regulation of the Financial Services Commission, if requested by
  106  such agencies. The court shall include these costs in every
  107  judgment rendered against the convicted person. For purposes of
  108  this section, “convicted” means a determination of guilt, or of
  109  violation of probation or community control, which is a result
  110  of a plea, trial, or violation proceeding, regardless of whether
  111  adjudication is withheld.
  112         (2)(a) The court shall impose the costs of prosecution and
  113  investigation notwithstanding the defendant’s present ability to
  114  pay. The court shall require the defendant to pay the costs
  115  within a specified period or in specified installments.
  116         (b) The end of such period or the last such installment may
  117  shall not be later than:
  118         1. The end of the period of probation or community control,
  119  if probation or community control is ordered;
  120         2. Five years after the end of the term of imprisonment
  121  imposed, if the court does not order probation or community
  122  control; or
  123         3. Five years after the date of sentencing in any other
  124  case.
  125  
  126  However, in no event shall the obligation to pay any unpaid
  127  amounts expire if not paid in full within the period specified
  128  in this paragraph.
  129         (c) If not otherwise provided by the court under this
  130  section, costs shall be paid immediately.
  131         (3) If a defendant is placed on probation or community
  132  control, payment of any costs under this section shall be a
  133  condition of such probation or community control. The court may
  134  revoke probation or community control if the defendant fails to
  135  pay these costs.
  136         (4) Any dispute as to the proper amount or type of costs
  137  shall be resolved by the court by the preponderance of the
  138  evidence. The burden of demonstrating the amount of costs
  139  incurred is on the state attorney. The burden of demonstrating
  140  the financial resources of the defendant and the financial needs
  141  of the defendant is on the defendant. The burden of
  142  demonstrating such other matters as the court deems appropriate
  143  is upon the party designated by the court as justice requires.
  144         (5) Any default in payment of costs may be collected by any
  145  means authorized by law for enforcement of a judgment.
  146         (6) The clerk of the court shall collect and dispense cost
  147  payments in any case.
  148         (7) Investigative costs that are recovered shall be
  149  returned to the appropriate investigative agency that incurred
  150  the expense. Such costs include actual expenses incurred in
  151  conducting the investigation and prosecution of the criminal
  152  case; however, costs may also include the salaries of permanent
  153  employees. Any investigative costs recovered on behalf of a
  154  state agency must be remitted to the Department of Revenue for
  155  deposit in the agency operating trust fund, and a report of the
  156  payment must be sent to the agency, except that any
  157  investigative costs recovered on behalf of the Department of Law
  158  Enforcement shall be deposited in the department’s Forfeiture
  159  and Investigative Support Trust Fund under s. 943.362.
  160         (8) Costs for the state attorney shall be set in all cases
  161  at no less than $50 per case when a misdemeanor or criminal
  162  traffic offense is charged and no less than $100 per case when a
  163  felony offense is charged, including a proceeding in which the
  164  underlying offense is a violation of probation or community
  165  control. The court may set a higher amount upon a showing of
  166  sufficient proof of higher costs incurred. Costs recovered on
  167  behalf of the state attorney under this section shall be
  168  deposited into the State Attorneys Revenue Trust Fund to be used
  169  during the fiscal year in which the funds are collected, or in
  170  any subsequent fiscal year, for actual expenses incurred in
  171  investigating and prosecuting criminal cases, which may include
  172  the salaries of permanent employees, or for any other purpose
  173  authorized by the Legislature.
  174         Section 6. Subsection (4) of section 985.557, Florida
  175  Statutes, is repealed.
  176         Section 7. Subsection (5) of section 775.0843, Florida
  177  Statutes, is amended to read:
  178         775.0843 Policies to be adopted for career criminal cases.—
  179         (5) Each career criminal apprehension program shall
  180  concentrate on the identification and arrest of career criminals
  181  and the support of subsequent prosecution. The determination of
  182  which suspected felony offenders shall be the subject of career
  183  criminal apprehension efforts shall be made in accordance with
  184  written target selection criteria selected by the individual law
  185  enforcement agency and state attorney consistent with the
  186  provisions of this section and s. ss. 775.08401 and 775.0842.
  187         Section 8. This act shall take effect July 1, 2011.