Florida Senate - 2016                                     SB 282
       By Senator Smith
       31-00185-16                                            2016282__
    1                        A bill to be entitled                      
    2         An act relating to criminal prosecution of juveniles;
    3         amending s. 985.557, F.S.; authorizing additional
    4         circumstances for the discretionary direct filing of
    5         charges against certain juveniles; requiring the state
    6         attorney to consider specified criteria in determining
    7         whether to recommend to the court that a child be
    8         transferred for criminal prosecution as an adult;
    9         requiring the state attorney to file a written
   10         explanation if he or she decides to file an
   11         information against a child; authorizing a child to
   12         request, in writing, a certain hearing; requiring the
   13         court to retain jurisdiction of a child if the child
   14         or his or her counsel does not meet a certain
   15         evidentiary burden of proof; reenacting ss. 985.04(2),
   16         985.15(1), and 985.556(3), F.S., relating to certain
   17         records of a child, specified filing decisions of the
   18         state attorney, and involuntary mandatory waivers of
   19         juvenile court jurisdiction, respectively, to
   20         incorporate the amendments made to s. 985.557, F.S.,
   21         in references thereto; providing an effective date.
   23  Be It Enacted by the Legislature of the State of Florida:
   25         Section 1. Paragraph (c) is added to subsection (1) of
   26  section 985.557, Florida Statutes, subsection (4) of that
   27  section is amended, and subsection (5) is added to that section,
   28  to read:
   29         985.557 Direct filing of an information; discretionary and
   30  mandatory criteria.—
   32         (c) Except as provided in paragraph (b), the state attorney
   33  may file an information against a child otherwise eligible under
   34  this section if the child has a prior felony or misdemeanor
   35  adjudication or an adjudication withheld.
   36         (4) DIRECT-FILE CRITERIA.—
   37         (a) The state attorney shall use the following criteria in
   38  determining whether to file an information against a child under
   39  subsection (1):
   40         1. The seriousness of the alleged offense and whether
   41  transferring the child is necessary for the protection of the
   42  community. The state attorney may consider the following in his
   43  or her evaluation:
   44         a. The recommendation of the department, through review and
   45  consideration of the recommendations of the department’s
   46  caseworker.
   47         b. The probable cause as found in the report, affidavit, or
   48  complaint, including:
   49         (I) Whether the alleged offense was committed in an
   50  aggressive, violent, premeditated, or willful manner.
   51         (II) Whether the alleged offense was against persons or
   52  against property, with greater weight being given to offenses
   53  against persons, especially when personal injury resulted.
   54         (III) The strength of the state’s evidence.
   55         c. The sophistication and maturity of the child.
   56         2. The record and previous history of the child, including:
   57         a. Previous contacts with the department, the Department of
   58  Corrections, the former Department of Health and Rehabilitative
   59  Services, the Department of Children and Families, other law
   60  enforcement agencies, and the courts.
   61         b. Prior periods of probation.
   62         c. Prior adjudications that the child committed a
   63  delinquent act or violation of law, with greater weight being
   64  given if the child has previously been found by a court to have
   65  committed a delinquent act or violation of law involving
   66  violence to persons.
   67         d. Prior commitments to institutions of the department, the
   68  Department of Corrections, or agencies under contract with the
   69  departments.
   70         e. Patterns of criminality or patterns of escalation.
   71         3. If the child is found to have committed the alleged
   72  offense, the prospects for adequate protection of the public and
   73  the likelihood of reasonable rehabilitation of the child through
   74  the use of procedures, services, and facilities currently
   75  available to the juvenile court.
   76         4. Cost-effective alternatives available to divert the
   77  child from the criminal and juvenile justice systems and offer
   78  the child rehabilitative services.
   79         (b) If the state attorney files an information against a
   80  child under this section, the state attorney shall file with the
   81  court his or her written explanation, addressing the criteria
   82  specified in paragraph (a), as to why the child should be
   83  transferred for criminal prosecution An information filed
   84  pursuant to this section may include all charges that are based
   85  on the same act, criminal episode, or transaction as the primary
   86  offenses.
   87         (5) REVERSE WAIVER.—Any child over whom the adult court has
   88  obtained original jurisdiction may request, in writing, a
   89  hearing to determine whether the child must remain in adult
   90  court. The adult court shall retain jurisdiction unless the
   91  child or his or her counsel proves by a preponderance of
   92  evidence all of the following:
   93         (a) The child could obtain services available in the
   94  juvenile justice system which could lessen the possibility of
   95  the child reoffending in the future.
   96         (b) The child’s best interests would be served by
   97  prosecuting the case in juvenile court.
   98         (c) The child could receive juvenile sanctions that would
   99  provide adequate safety and protection for the community.
  100         (d) The child is not charged with a felony that is
  101  punishable by death or life imprisonment.
  102         (e) The child has not previously been convicted and
  103  sentenced as an adult.
  104         Section 2. For the purpose of incorporating the amendment
  105  made by this act to section 985.557, Florida Statutes, in a
  106  reference thereto, subsection (2) of section 985.04, Florida
  107  Statutes, is reenacted to read:
  108         985.04 Oaths; records; confidential information.—
  109         (2) Notwithstanding any other provisions of this chapter,
  110  the name, photograph, address, and crime or arrest report of a
  111  child:
  112         (a) Taken into custody if the child has been taken into
  113  custody by a law enforcement officer for a violation of law
  114  which, if committed by an adult, would be a felony;
  115         (b) Found by a court to have committed three or more
  116  violations of law which, if committed by an adult, would be
  117  misdemeanors;
  118         (c) Transferred to the adult system under s. 985.557,
  119  indicted under s. 985.56, or waived under s. 985.556;
  120         (d) Taken into custody by a law enforcement officer for a
  121  violation of law subject to s. 985.557(2)(b) or (d); or
  122         (e) Transferred to the adult system but sentenced to the
  123  juvenile system under s. 985.565
  125  shall not be considered confidential and exempt from s.
  126  119.07(1) solely because of the child’s age.
  127         Section 3. For the purpose of incorporating the amendment
  128  made by this act to section 985.557, Florida Statutes, in a
  129  reference thereto, subsection (1) of section 985.15, Florida
  130  Statutes, is reenacted to read:
  131         985.15 Filing decisions.—
  132         (1) The state attorney may in all cases take action
  133  independent of the action or lack of action of the juvenile
  134  probation officer and shall determine the action that is in the
  135  best interest of the public and the child. If the child meets
  136  the criteria requiring prosecution as an adult under s. 985.556,
  137  the state attorney shall request the court to transfer and
  138  certify the child for prosecution as an adult or shall provide
  139  written reasons to the court for not making such a request. In
  140  all other cases, the state attorney may:
  141         (a) File a petition for dependency;
  142         (b) File a petition under chapter 984;
  143         (c) File a petition for delinquency;
  144         (d) File a petition for delinquency with a motion to
  145  transfer and certify the child for prosecution as an adult;
  146         (e) File an information under s. 985.557;
  147         (f) Refer the case to a grand jury;
  148         (g) Refer the child to a diversionary, pretrial
  149  intervention, arbitration, or mediation program, or to some
  150  other treatment or care program if such program commitment is
  151  voluntarily accepted by the child or the child’s parents or
  152  legal guardian; or
  153         (h) Decline to file.
  154         Section 4. For the purpose of incorporating the amendment
  155  made by this act to section 985.557, Florida Statutes, in a
  156  reference thereto, subsection (3) of section 985.556, Florida
  157  Statutes, is reenacted to read:
  158         985.556 Waiver of juvenile court jurisdiction; hearing.—
  160         (a) If the child was 14 years of age or older, and if the
  161  child has been previously adjudicated delinquent for an act
  162  classified as a felony, which adjudication was for the
  163  commission of, attempt to commit, or conspiracy to commit
  164  murder, sexual battery, armed or strong-armed robbery,
  165  carjacking, home-invasion robbery, aggravated battery,
  166  aggravated assault, or burglary with an assault or battery, and
  167  the child is currently charged with a second or subsequent
  168  violent crime against a person; or
  169         (b) If the child was 14 years of age or older at the time
  170  of commission of a fourth or subsequent alleged felony offense
  171  and the child was previously adjudicated delinquent or had
  172  adjudication withheld for or was found to have committed, or to
  173  have attempted or conspired to commit, three offenses that are
  174  felony offenses if committed by an adult, and one or more of
  175  such felony offenses involved the use or possession of a firearm
  176  or violence against a person;
  178  the state attorney shall request the court to transfer and
  179  certify the child for prosecution as an adult or shall provide
  180  written reasons to the court for not making such request, or
  181  proceed under s. 985.557(1). Upon the state attorney’s request,
  182  the court shall either enter an order transferring the case and
  183  certifying the case for trial as if the child were an adult or
  184  provide written reasons for not issuing such an order.
  185         Section 5. This act shall take effect July 1, 2016.