Florida Senate - 2013 SB 1742 By Senator Braynon 36-00605-13 20131742__ 1 A bill to be entitled 2 An act relating to drug-dependent offenders; creating 3 s. 948.205, F.S.; requiring the court to order an 4 offender to submit to a professional diagnostic 5 assessment under specified circumstances; providing 6 circumstances in which the court may choose not to 7 order a diagnostic assessment; specifying criteria to 8 be used in determining whether an offender is drug 9 dependent; requiring the court to place on the written 10 record its reasons for not ordering a professional 11 diagnostic assessment; clarifying the court’s 12 authority to order drug testing or screening; defining 13 terms; requiring the court to sentence an offender to 14 special probation if the court finds that an offender 15 is drug dependent and in need of treatment; requiring 16 certain offenders to participate in a court-supervised 17 drug treatment program; providing circumstances in 18 which the court need not order the offender to 19 participate in drug treatment; providing for the 20 ineligibility of some offenders to be sentenced to 21 special probation; requiring the court to consider all 22 relevant circumstances in determining whether to 23 sentence an offender to special probation and to place 24 the reasons for its decision on the record; providing 25 that an order sentencing an offender to special 26 probation is not final until the state attorney has an 27 opportunity to appeal the sentence; defining the term 28 “person in need of treatment”; requiring a court to 29 order a drug-dependent person who is ineligible for 30 regular probation to be sentenced to a term of 31 special-probation drug treatment; providing that an 32 offender may be sentenced to special probation for up 33 to 5 years; requiring the court to find certain facts 34 before ordering special-probation drug treatment; 35 requiring the court to consider certain factors in 36 determining whether residential or nonresidential 37 treatment is appropriate; providing the conditions for 38 special probation imposed on the offender for 39 participating in special probation; providing criteria 40 that make an offender ineligible for special-probation 41 drug treatment programs; requiring an offender who is 42 placed on special probation to be immediately 43 tranferred to the custody of a residential treatment 44 facility licensed and approved by the Department of 45 Children and Families and the Department of Health; 46 providing that an offender be transferred to a prison 47 for not more than 6 months if there is no vacancy at a 48 residential treatment facility at the time of 49 sentencing; providing that an offender complete his or 50 her special probation in a nonresidential program 51 after completing the residential placement; requiring 52 the probation department or other appropriate agency 53 designated by the court to monitor or supervise the 54 offender’s special probation; requiring that the 55 agencies report periodically to the court as to the 56 offender’s progress in treatment and compliance with 57 court-imposed terms and conditions; requiring the 58 special-probation treatment provider to promptly 59 report to the probation department or other 60 appropriate agency all significant failures by the 61 offender to comply with a court-imposed term or 62 condition of special-probation drug treatment, 63 including a positive drug or alcohol test or the 64 unexcused failure to attend a required program event; 65 providing penalties for an offender violating any term 66 or condition of special probation; providing an 67 exception; providing criteria for the court to 68 consider in determining whether to revoke special 69 probation; providing alternative sentences if the 70 offender’s special probation is revoked; providing for 71 additional terms and conditions with which the 72 offender must comply if the court orders continued 73 special probation; providing penalties for an offender 74 refusing to submit to a drug test; specifying that 75 certain persons may institute proceedings if they 76 believes the offender has violated the terms or 77 conditions of special probation; authorizing the court 78 to temporarily incarcerate an offender under certain 79 circumstances in order to motivate the offender to 80 make satisfactory progress in the treatment program; 81 requiring a participating offender to pay, to the 82 extent determined possible, the cost of special 83 probation drug treatment, as well as any fines, fees, 84 penalties, or restitution applicable to the original 85 offense; authorizing the court to temporarily suspend 86 imposition of all or any portion of the term of 87 treatment in a residential treatment facility to allow 88 the offender to enter a nonresidential treatment 89 program; providing criteria that may justify the 90 transfer to a nonresidential treatment program; 91 providing that a state attorney may object to a 92 proposed transfer; providing that the court may 93 permanently suspend the transfer of an offender to 94 residential treatment if there has been satisfactory 95 progress in treatment; requiring the court to order at 96 least weekly drug and alcohol tests, appropriate 97 curfews, and restrictions on movement if residential 98 treatment is temporarily suspended; requiring 99 notification to the court and state attorney under 100 certain circumstances; providing for the revocation of 101 special probation in certain circumstances; 102 authorizing early discharge from special probation 103 under specified circumstances; providing an effective 104 date. 105 106 Be It Enacted by the Legislature of the State of Florida: 107 108 Section 1. Section 948.205, Florida Statutes, is created to 109 read: 110 948.205 Special probation for drug-dependent offenders.— 111 (1) DIAGNOSTIC ASSESSMENT.—The court shall order that each 112 offender submit to a professional diagnostic assessment if: 113 (a) There is a reasonable basis for the court to believe 114 that an offender may be drug dependent; 115 (b) The offender meets the eligibility criteria for 116 consideration for ordering the offender to a special-probation 117 drug treatment program; and 118 (c) The offender is charged with: 119 1. A crime that is subject to imprisonment; or 120 2. A felony of the third degree if the offender has 121 previously been convicted of a crime subject to imprisonment or 122 which resulted in the imposition of a state prison term. 123 (d) The court is not required to order a diagnostic 124 assessment if the court is clearly convinced that such an 125 assessment will not serve any useful purpose. If the court does 126 not order a professional diagnostic assessment, the court shall 127 place on the written record the reasons for its decision not to 128 order the assessment. 129 (e) This section does not limit a court’s authority to 130 order drug testing or drug screening at any time. 131 (2) DETERMINATION OF DRUG DEPENDENCY.—For the purposes of 132 this section, the following factual circumstances establish a 133 reasonable basis for the court to believe that an offender may 134 be drug dependent: 135 (a) The present offense involves the use or possession of a 136 controlled substance; 137 (b) The offender has previously been convicted of an 138 offense involving the use or possession of a controlled 139 substance, was admitted to pretrial intervention or supervisory 140 treatment, or received a conditional discharge for a charge 141 involving a controlled substance; 142 (c) The offender has a pending charge in this or any other 143 state court or a federal court involving the use or possession 144 of a controlled substance; 145 (d) The offender has at any time in the past received any 146 form of drug treatment or counseling; 147 (e) The offender appears to have been under the influence 148 of a controlled substance during the commission of the present 149 offense; 150 (f) It reasonably appears that the offender’s present 151 offense may have been committed to acquire property or moneys to 152 purchase a controlled substance for the offender’s personal use; 153 (g) The offender admits to the unlawful use or possession 154 of a controlled substance within the 12 months preceding the 155 arrest for the present offense; 156 (h) The offender had a positive drug test within the past 157 12 months; or 158 (i) There is information, other than the circumstances 159 enumerated in paragraphs (a) through (h), which indicates that 160 the offender may be a drug-dependent offender or would otherwise 161 benefit by undergoing a professional diagnostic assessment. 162 163 A person who has completed his or her professional diagnostic 164 assessment and has been found to be drug dependent shall be 165 returned to the court to be ordered into special probation 166 pursuant to subsection (3). 167 (3) SENTENCE OF SPECIAL PROBATION FOR CERTAIN OFFENDERS.— 168 (a) For the purposes of this section, the term “offender in 169 need of treatment” means an offender who: 170 1. The court has determined to be drug-dependent; and 171 2. Has been convicted of: 172 a. A crime subject to a presumption of imprisonment; or 173 b. A felony of the third degree, if the offender has 174 previously been convicted of a crime subject to a presumption of 175 imprisonment or a crime that resulted in the imposition of a 176 state prison term. 177 (b) If an assessment finds that an offender is a drug 178 dependent offender in need of treatment, the court shall 179 sentence the offender to special probation to participate in a 180 court-supervised drug treatment program, regardless of whether 181 the offender has sought or consents to such drug treatment as a 182 condition of a probation sentence. 183 (c) The court shall order the offender to participate in 184 special-probation drug treatment unless: 185 1. The court finds that a sentence of imprisonment must be 186 imposed, in which case a sentence of imprisonment shall be 187 served first; or 188 2. The court is clearly convinced that: 189 a. The treatment, monitoring, and supervision services for 190 drug-dependent offenders which are provided in prison are 191 clinically adequate to address the offender’s drug dependency; 192 b. The offender’s drug treatment needs would not be better 193 addressed by sentencing the offender to special probation; 194 c. Placing the offender on regular probation would pose a 195 danger to the community; and 196 d. A sentence of regular probation would not be consistent 197 with law. 198 (d) An offender is not eligible to be ordered to special 199 probation if the offender is convicted of or adjudicated 200 delinquent for: 201 1. A felony of the first degree; 202 2. A felony of the second or third degree involving sex 203 crimes; 204 3. A felony for which a mandatory minimum period of 205 incarceration is prescribed under law; or 206 4. An offense that involved the distribution or the 207 conspiracy or attempt to distribute a controlled substance or 208 controlled substance analog to a juvenile near or on school 209 property. 210 (e) In making the findings and determinations required 211 under this section, the court shall consider all relevant 212 circumstances; shall take judicial notice of any evidence, 213 testimony, or information adduced at the trial, plea hearing, or 214 other court proceedings; and shall consider the presentence 215 report and the results of any professional diagnostic 216 assessment. The court shall place on the written record the 217 reasons for its decision. 218 (f) If the court imposes a sentence of special probation, 219 the sentence becomes final only after the state attorney has had 220 10 days to appeal the sentence to the appropriate appellate 221 court. 222 (4) REHABILITATION PROGRAM FOR DRUG-DEPENDENT OFFENDERS; 223 RESIDENTIAL PLACEMENTS.— 224 (a) A drug-dependent offender who is eligible for special 225 probation drug treatment shall be sentenced to such probation. 226 The court shall give priority to an offender who has requested 227 special probation over an offender who is being considered by 228 the court, on its own motion, for special probation. This 229 paragraph does not prohibit an offender who is eligible for 230 probation from requesting drug treatment as a condition of 231 probation. 232 (b) The court shall place the offender on special probation 233 for a period of not less than 5 years. 234 (c) Unless the offender is sentenced to nonresidential 235 treatment under subsection (6), the offender shall initially be 236 placed in a suitable residential treatment facility that has 237 agreed to provide appropriate drug treatment services in 238 accordance with the requirements of this section. Such 239 residential facilities must be licensed and approved by the 240 Department of Children and Families and the Department of 241 Health. 242 (d) In determining whether to sentence the offender to a 243 residential-based or nonresidential special-probation drug 244 treatment program, the court shall consider all relevant 245 circumstances, and shall take judicial notice of the evidence, 246 testimony, or information adduced at the trial, plea hearing, or 247 other court proceedings. The court shall also consider the 248 presentence report and the results of the professional 249 diagnostic assessment to determine to what extent the offender 250 is drug dependent and would benefit from residential or 251 nonresidential treatment. 252 (5) CONDITIONS OF SPECIAL PROBATION IN A RESIDENTIAL 253 FACILITY.—As a condition of placing an offender in a residential 254 special-probation drug treatment program, the offender shall: 255 (a) Agree to reside only at a residential drug treatment 256 program facility that is licensed and approved by the Department 257 of Children and Families and the Department of Health; 258 (b) Agree to comply with all treatment program rules and 259 the requirements during the course of treatment; 260 (c) Cooperate fully with the treatment provider and the 261 provider’s staff; and 262 (d) Comply with such other reasonable terms and conditions 263 as may be required by the court or the department. Among the 264 reasonable terms is the requirement that each offender submit to 265 random, periodic urine testing for drugs throughout the period 266 of special probation. 267 268 Upon order of the court, the department shall immediately 269 transfer the offender to the drug treatment facility. If the 270 residential treatment facility cannot immediately accommodate 271 the offender, the offender shall be temporarily incarcerated in 272 a state prison to await a vacancy in the residential treatment 273 facility. The term of such penal commitment may not exceed 6 274 months. 275 (6) NONRESIDENTIAL TREATMENT PROGRAMS.— 276 (a) An offender may enter a nonresidential drug treatment 277 program upon successful completion of the required residential 278 treatment or, directly, in place of a residential program, if 279 the court finds on the written record that: 280 1. The professional conducting the diagnostic assessment 281 has recommended in writing that the proposed course of 282 nonresidential drug treatment services is clinically appropriate 283 and adequate to address the offender’s drug treatment needs. 284 2. No danger to the community would result from the 285 offender participating in the proposed course of nonresidential 286 treatment services. 287 3. A suitable treatment provider is available, and has 288 agreed, to provide clinically appropriate nonresidential drug 289 treatment services. 290 (b) If, after a period of 6 months of nonresidential drug 291 treatment, the court finds that the offender has made 292 satisfactory progress and that there is a substantial likelihood 293 that the offender will successfully complete the nonresidential 294 treatment program, the court shall give notice to the state 295 attorney that the court may permanently suspend any further 296 commitment of the offender to a residential drug treatment 297 program and, instead, order the offender to a nonresidential 298 drug treatment program. If the state attorney objects to the 299 court’s decision to suspend the commitment of the offender to a 300 residential treatment facility, the sentence of special 301 probation does not become final until the state attorney has the 302 opportunity to appeal the court’s decision. 303 (c) This subsection does not limit the authority of the 304 court at any other time during the term of special-probation 305 drug treatment to order the offender to be committed to a 306 residential or nonresidential treatment facility if the court 307 determines that such treatment is clinically appropriate and 308 necessary to address the offender’s present treatment needs. 309 (d) If the court finds that an offender has made exemplary 310 progress in the course of treatment, the court may, upon 311 recommendation of the offender’s supervising probation officer 312 or on the court’s own motion, give notice to the state attorney 313 that the court may grant early discharge from a term of special 314 probation provided that the offender: 315 1. Has satisfactorily completed the treatment program 316 ordered by the court; 317 2. Has served at least 2 years of special probation; 318 3. Did not commit a substantial violation of any term or 319 condition of special probation, including, but not limited to, a 320 positive urine test, within the preceding 12 months; and 321 4. Is not likely to relapse or commit an offense if 322 probation supervision and related services are discontinued. 323 (7) COMPLIANCE WITH CONDITIONS; PENALTIES.— 324 (a) The probation department or other appropriate agency 325 designated by the court to monitor and supervise the offender’s 326 special-probation drug treatment shall report periodically to 327 the court as to the offender’s progress in treatment and 328 compliance with court-imposed terms and conditions. The special 329 probation treatment provider shall promptly report to the 330 probation department any failure by the offender to comply with 331 court-imposed terms or conditions of special probation, 332 including a positive drug test or the unexcused failure by the 333 offender to attend any session or activity required by the 334 department or drug treatment provider. The probation department 335 shall immediately notify the court and the state attorney of the 336 offender’s noncompliance. 337 (b)1. For a first violation of any term or condition of 338 special-probation drug treatment or of any requirements of the 339 course of treatment, the court, in its discretion, may 340 permanently revoke the offender’s special probation. 341 2. For a second violation of any term or condition of 342 special probation or of any requirements of the course of 343 treatment, the court may permanently revoke the offender’s 344 special probation. 345 (c) If the court finds that there is a substantial 346 likelihood that the offender will successfully complete the drug 347 treatment program if allowed to continue on special-probation 348 treatment and is clearly convinced that no danger to the 349 community will result from allowing the offender to continue, 350 the court may order the offender to remain on special probation 351 for treatment services. The court’s determination to allow the 352 offender to continue on special probation following a second 353 violation may be appealed by the state attorney. 354 (d) In making its determination whether to revoke special 355 probation drug treatment services, the court shall consider the 356 nature and seriousness of the present infraction and any past 357 infractions in relation to the offender’s overall progress in 358 the course of nonresidential treatment. The court shall give 359 added weight to the treatment provider’s recommendation as to 360 whether the offender’s special probation should be permanently 361 revoked or continued. 362 (e)1. If the court permanently revokes the offender’s 363 special probation, the court shall impose the sentence that 364 might have been imposed or that was required to be imposed. 365 2. If the court orders, or is required to impose, a term of 366 imprisonment, the offender shall receive credit for any time 367 served in custody or while awaiting placement in a treatment 368 facility, and for each day during which the offender 369 satisfactorily complied with the terms and conditions of special 370 probation while committed to a residential treatment facility or 371 while receiving nonresidential treatment. The court, in 372 determining credit for time spent in a residential treatment 373 facility, shall consider the recommendations of the treatment 374 provider. 375 (f) If the court allows the offender to continue on special 376 probation, the court shall order the offender to comply with 377 such additional terms and conditions necessary to deter and 378 promptly detect any further violation, including, but not 379 limited to, more frequent drug testing. 380 (g) A legal proceeding to allege a violation of the terms 381 or conditions of special probation may be initiated by a 382 probation officer or the state attorney or on the court’s own 383 motion. An offender who fails to comply with the terms of his or 384 her special-probation program and who is thereafter sentenced to 385 imprisonment in accordance with this section is ineligible for 386 another entry into an intensive supervision program. 387 (h)1. If an offender on special probation commits a second 388 or subsequent violation of this section, the court may, in place 389 of permanently revoking the offender’s special probation, impose 390 a term of incarceration for a period of not less than 30 days 391 but not more than 6 months, after which the offender’s term of 392 special probation may be reinstated. In determining whether to 393 order a period of incarceration in place of permanent 394 revocation, the court shall consider the recommendations of the 395 treatment provider with respect to the likelihood that such 396 confinement would serve to motivate the offender to make 397 satisfactory progress in treatment once special probation is 398 reinstated. 399 2. The short-term incarceration may occur only once with 400 respect to any offender unless the court is clearly convinced 401 that there are compelling and extraordinary reasons to justify 402 reimposing this disposition with respect to the offender. Any 403 such determination by the court to reimpose short-term 404 incarceration may be appealed by the state attorney. 405 (8) COSTS AND FEES.— 406 (a) The court, as a condition of its order, and after 407 considering the offender’s financial resources, may require the 408 offender to pay all or a portion of his or her costs associated 409 with his or her participation in the special-probation drug 410 treatment program. Such a decision must be consistent with the 411 offender’s ability to pay. 412 (b) The court shall impose, as a condition of special 413 probation, the fine, penalty, fee, or restitution applicable to 414 the offense for which the offender was convicted or adjudicated 415 delinquent. 416 Section 2. This act shall take effect July 1, 2013. 417