Florida Senate - 2016                          SENATOR AMENDMENT
       Bill No. SB 314, 1st Eng.
       
       
       
       
       
       
                                Ì5622383Î562238                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                 Floor: WD/3R          .                                
             03/11/2016 10:12 AM       .                                
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       Senator Diaz de la Portilla moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 66 - 387
    4  and insert:
    5         Section 2. Paragraphs (c), (d), and (e) are added to
    6  subsection (1) of section 985.557, Florida Statutes, present
    7  subsection (2) of that section is amended, present subsections
    8  (3) and (4) of that section are redesignated as subsections (2)
    9  and (3), respectively, and a new subsection (4) and subsection
   10  (5) are added to that section, to read:
   11         985.557 Direct filing of an information; discretionary and
   12  mandatory criteria.—
   13         (1) DISCRETIONARY DIRECT FILE.—
   14         (c) For each child who is transferred to adult court for
   15  prosecution, the state attorney in charge of the case shall
   16  report in writing the criteria used by the state attorney in
   17  making the decision to transfer. For purposes of this report,
   18  the state attorney in each judicial circuit shall work
   19  cooperatively with the department to develop a uniform list of
   20  criteria and a uniform reporting format to be used statewide. If
   21  a criterion not included in the uniform list of criteria is used
   22  by a state attorney, such criterion must be identified in the
   23  report. The state attorney shall file the report with the court
   24  and the department at the time of disposition.
   25         (d) For each child who is transferred to adult court for
   26  prosecution or who was eligible for such transfer but for whom a
   27  petition was filed, the following information shall be submitted
   28  by the state attorney in charge of the case to the department at
   29  the time of disposition:
   30         a. Whether one or more adult codefendants were involved in
   31  the case.
   32         b. Whether one or more child codefendants were involved in
   33  the case and whether such codefendant was transferred to adult
   34  court.
   35         c. Whether sentencing is pursuant to a plea or trial.
   36         d. Whether the child was represented by counsel.
   37         (e) The department must work with the state attorneys to
   38  create a report that identifies children who enter the juvenile
   39  justice system and qualify for direct file based on age and the
   40  crime charged.
   41         (2) MANDATORY DIRECT FILE.—
   42         (a) With respect to any child who was 16 or 17 years of age
   43  at the time the alleged offense was committed, the state
   44  attorney shall file an information if the child has been
   45  previously adjudicated delinquent for an act classified as a
   46  felony, which adjudication was for the commission of, attempt to
   47  commit, or conspiracy to commit murder, sexual battery, armed or
   48  strong-armed robbery, carjacking, home-invasion robbery,
   49  aggravated battery, or aggravated assault, and the child is
   50  currently charged with a second or subsequent violent crime
   51  against a person.
   52         (b) With respect to any child 16 or 17 years of age at the
   53  time an offense classified as a forcible felony, as defined in
   54  s. 776.08, was committed, the state attorney shall file an
   55  information if the child has previously been adjudicated
   56  delinquent or had adjudication withheld for three acts
   57  classified as felonies each of which occurred at least 45 days
   58  apart from each other. This paragraph does not apply when the
   59  state attorney has good cause to believe that exceptional
   60  circumstances exist which preclude the just prosecution of the
   61  juvenile in adult court.
   62         (c) The state attorney must file an information if a child,
   63  regardless of the child’s age at the time the alleged offense
   64  was committed, is alleged to have committed an act that would be
   65  a violation of law if the child were an adult, that involves
   66  stealing a motor vehicle, including, but not limited to, a
   67  violation of s. 812.133, relating to carjacking, or s.
   68  812.014(2)(c)6., relating to grand theft of a motor vehicle, and
   69  while the child was in possession of the stolen motor vehicle
   70  the child caused serious bodily injury to or the death of a
   71  person who was not involved in the underlying offense. For
   72  purposes of this section, the driver and all willing passengers
   73  in the stolen motor vehicle at the time such serious bodily
   74  injury or death is inflicted shall also be subject to mandatory
   75  transfer to adult court. “Stolen motor vehicle,” for the
   76  purposes of this section, means a motor vehicle that has been
   77  the subject of any criminal wrongful taking. For purposes of
   78  this section, “willing passengers” means all willing passengers
   79  who have participated in the underlying offense.
   80         (d)1. With respect to any child who was 16 or 17 years of
   81  age at the time the alleged offense was committed, the state
   82  attorney shall file an information if the child has been charged
   83  with committing or attempting to commit an offense listed in s.
   84  775.087(2)(a)1.a.-q., and, during the commission of or attempt
   85  to commit the offense, the child:
   86         a. Actually possessed a firearm or destructive device, as
   87  those terms are defined in s. 790.001.
   88         b. Discharged a firearm or destructive device, as described
   89  in s. 775.087(2)(a)2.
   90         c. Discharged a firearm or destructive device, as described
   91  in s. 775.087(2)(a)3., and, as a result of the discharge, death
   92  or great bodily harm was inflicted upon any person.
   93         2. Upon transfer, any child who is:
   94         a. Charged under sub-subparagraph 1.a. and who has been
   95  previously adjudicated or had adjudication withheld for a
   96  forcible felony offense or any offense involving a firearm, or
   97  who has been previously placed in a residential commitment
   98  program, shall be subject to sentencing under s. 775.087(2)(a),
   99  notwithstanding s. 985.565.
  100         b. Charged under sub-subparagraph 1.b. or sub-subparagraph
  101  1.c., shall be subject to sentencing under s. 775.087(2)(a),
  102  notwithstanding s. 985.565.
  103         3. Upon transfer, any child who is charged under this
  104  paragraph, but who does not meet the requirements specified in
  105  subparagraph 2., shall be sentenced under s. 985.565; however,
  106  if the court imposes a juvenile sanction, the court must commit
  107  the child to a high-risk or maximum-risk juvenile facility.
  108         4. This paragraph shall not apply if the state attorney has
  109  good cause to believe that exceptional circumstances exist that
  110  preclude the just prosecution of the child in adult court.
  111         5. The Department of Corrections shall make every
  112  reasonable effort to ensure that any child 16 or 17 years of age
  113  who is convicted and sentenced under this paragraph be
  114  completely separated such that there is no physical contact with
  115  adult offenders in the facility, to the extent that it is
  116  consistent with chapter 958.
  117         (4) TRANSFER PROHIBITION.—Notwithstanding any other law:
  118         (a) A child who is eligible for direct file and who has
  119  previously been found to be incompetent but has not been
  120  restored to competency by a court may not be transferred to
  121  adult court for criminal prosecution unless a motion to
  122  determine competency is immediately filed by the state.
  123         (b) The court may transfer the child from the jail to the
  124  juvenile detention center for any period while the competency
  125  hearing is pending and subsequently if competency placement is
  126  deemed necessary.
  127         (5) DATA COLLECTION RELATING TO DIRECT FILE.—
  128         (a) The department shall collect data relating to children
  129  who are transferred under this section and s. 985.556 and for
  130  children who are eligible for transfer but are the subject of a
  131  petition, regardless of the outcome of the case. The data to be
  132  collected must include, but need not be limited to:
  133         1. Age.
  134         2. Race and ethnicity.
  135         3. Gender.
  136         4. Circuit and county of residence.
  137         5. Circuit and county of offense.
  138         6. Prior offenses regardless of adjudication.
  139         7. Prior periods of probation.
  140         8. Previous contacts with law enforcement agencies or the
  141  court which result in a civil citation, arrest, or charges being
  142  filed with the state.
  143         9. Initial charges.
  144         10. Charges at disposition.
  145         11. Whether child codefendants were involved who were
  146  transferred to adult court.
  147         12. Whether the child was represented by counsel.
  148         13. Risk assessment instrument score.
  149         14. The child’s medical, mental health, substance abuse, or
  150  trauma history.
  151         15. The child’s history of mental impairment or disability
  152  related accommodations.
  153         16. The child’s history of abuse or neglect.
  154         17. The child’s history of foster care placements,
  155  including the number of prior placements.
  156         18. Whether the child has below-average intellectual
  157  functioning.
  158         19. Whether the child has received mental health services
  159  or treatment.
  160         20. Whether the child has been the subject of a child-in
  161  need-of-services or families-in-need-of-services petition or a
  162  dependency petition.
  163         21. The case resolution and disposition data, including,
  164  but not limited to, plea or trial; participation in a diversion
  165  program; the imposition of adult or juvenile sanctions; the type
  166  and duration of the sentence or disposition, including length of
  167  stay in a commitment facility, type of commitment facility, and
  168  disciplinary reports from the commitment facility; and length of
  169  incarceration in jail or prison and disciplinary reports from
  170  those facilities.
  171         22. Whether the child was previously found incompetent to
  172  proceed in juvenile court.
  173         23. Whether the child was arrested for an offense that
  174  occurred subsequent to the transfer or decision to file a
  175  juvenile petition.
  176         24. Information generated by the state attorney in each
  177  judicial circuit under paragraphs (1)(c) and (d).
  178         (b) For every case transferred to adult court between July
  179  1, 2015, and June 30, 2016, the department shall work with the
  180  Office of Program Policy Analysis and Government Accountability
  181  to generate a report analyzing the existing data. The department
  182  must provide this report to the Governor, the President of the
  183  Senate, and the Speaker of the House of Representatives by
  184  January 31, 2017.
  185         (c) The department shall work with the Office of Program
  186  Policy Analysis and Government Accountability to generate data
  187  collection instruments to provide annual reports analyzing the
  188  data under paragraph (a) for each fiscal year. The department
  189  shall provide these reports to the Governor, the President of
  190  the Senate, and the Speaker of the House of Representatives no
  191  later than January 31 of the following calendar year.
  192         Section 3. Paragraphs (a) and (b) of subsection (4) of
  193  section 985.565, Florida Statutes, are amended to read:
  194         985.565 Sentencing powers; procedures; alternatives for
  195  juveniles prosecuted as adults.—
  196         (4) SENTENCING ALTERNATIVES.—
  197         (a) Adult sanctions.—
  198         1. Cases prosecuted on indictment.—If the child is found to
  199  have committed the offense punishable by death or life
  200  imprisonment, the child shall be sentenced as an adult. If the
  201  juvenile is not found to have committed the indictable offense
  202  but is found to have committed a lesser included offense or any
  203  other offense for which he or she was indicted as a part of the
  204  criminal episode, the court may sentence as follows:
  205         a. As an adult;
  206         b. Under chapter 958; or
  207         c. As a juvenile under this section.
  208         2. Other cases.—If a child who has been transferred for
  209  criminal prosecution pursuant to information or waiver of
  210  juvenile court jurisdiction is found to have committed a
  211  violation of state law or a lesser included offense for which he
  212  or she was charged as a part of the criminal episode, the court
  213  may sentence as follows:
  214         a. As an adult;
  215         b. Under chapter 958; or
  216         c. As a juvenile under this section.
  217         3. Notwithstanding any other provision to the contrary, if
  218  the state attorney is required to file a motion to transfer and
  219  certify the juvenile for prosecution as an adult under s.
  220  985.556(3) and that motion is granted, or if the state attorney
  221  is required to file an information under s. 985.557(2)(a) or
  222  (b), the court must impose adult sanctions.
  223         3.4. Any sentence imposing adult sanctions is presumed
  224  appropriate, and the court is not required to set forth specific
  225  findings or enumerate the criteria in this subsection as any
  226  basis for its decision to impose adult sanctions.
  227         4.5. When a child has been transferred for criminal
  228  prosecution as an adult and has been found to have committed a
  229  violation of state law, the disposition of the case may include
  230  the enforcement of any restitution ordered in any juvenile
  231  proceeding.
  232         5. The Department of Corrections shall make every
  233  reasonable effort to ensure that any child who is convicted and
  234  sentenced to a term in a jail or a prison facility be completely
  235  separated so that there is no physical contact with adult
  236  offenders in the facility, to the extent that it is consistent
  237  with chapter 958.
  238         (b) Juvenile sanctions.For juveniles transferred to adult
  239  court but who do not qualify for such transfer under s.
  240  985.556(3) or s. 985.557(2)(a) or (b), The court may impose
  241  juvenile sanctions under this paragraph for juveniles
  242  transferred to adult court. If juvenile sentences are imposed,
  243  the court shall, under this paragraph, adjudge the child to have
  244  committed a delinquent act. Adjudication of delinquency shall
  245  not be deemed a conviction, nor shall it operate to impose any
  246  of the civil disabilities ordinarily resulting from a
  247  conviction. The court shall impose an adult sanction or a
  248  juvenile sanction and may not sentence the child to a
  249  combination of adult and juvenile punishments. An adult sanction
  250  or a juvenile sanction may include enforcement of an order of
  251  restitution or probation previously ordered in any juvenile
  252  proceeding. However, if the court imposes a juvenile sanction
  253  and the department determines that the sanction is unsuitable
  254  for the child, the department shall return custody of the child
  255  to the sentencing court for further proceedings, including the
  256  imposition of adult sanctions. Upon adjudicating a child
  257  delinquent under subsection (1), the court may:
  258         1. Place the child in a probation program under the
  259  supervision of the department for an indeterminate period of
  260  time until the child reaches the age of 19 years or sooner if
  261  discharged by order of the court.
  262         2. Commit the child to the department for treatment in an
  263  appropriate program for children for an indeterminate period of
  264  time until the child is 21 or sooner if discharged by the
  265  department. The department shall notify the court of its intent
  266  to discharge no later than 14 days prior to discharge. Failure
  267  of the court to timely respond to the department’s notice shall
  268  be considered approval for discharge.
  269         3. Order disposition under ss. 985.435, 985.437, 985.439,
  270  985.441, 985.45, and 985.455 as an alternative to youthful
  271  offender or adult sentencing if the court determines not to
  272  impose youthful offender or adult sanctions.
  273  
  274         It is the intent of the Legislature that the criteria and
  275  guidelines in this subsection are mandatory and that a
  276  determination of disposition under this subsection is subject to
  277  the right of the child to appellate review under s. 985.534.
  278         Section 4. Subsection (54) of section 985.03, Florida
  279  Statutes, is amended to read:
  280         985.03 Definitions.—As used in this chapter, the term:
  281         (54) “Waiver hearing” means a hearing provided for under s.
  282  985.556 s. 985.556(4).
  283         Section 5. Subsection (2) of section 985.04, Florida
  284  Statutes, is amended to read:
  285         985.04 Oaths; records; confidential information.—
  286         (2) Notwithstanding any other provisions of this chapter,
  287  the name, photograph, address, and crime or arrest report of a
  288  child:
  289         (a) Taken into custody if the child has been taken into
  290  custody by a law enforcement officer for a violation of law
  291  which, if committed by an adult, would be a felony;
  292         (b) Found by a court to have committed three or more
  293  violations of law which, if committed by an adult, would be
  294  misdemeanors;
  295         (c) Transferred to the adult system under s. 985.557,
  296  indicted under s. 985.56, or waived under s. 985.556;
  297         (d) Taken into custody by a law enforcement officer for a
  298  violation of law subject to s. 985.557(2)(b) or (d); or
  299         (d)(e) Transferred to the adult system but sentenced to the
  300  juvenile system under s. 985.565
  301  
  302  shall not be considered confidential and exempt from s.
  303  119.07(1) solely because of the child’s age.
  304         Section 6. Subsection (1) of section 985.15, Florida
  305  Statutes, is amended to read:
  306         985.15 Filing decisions.—
  307         (1) The state attorney may in all cases take action
  308  independent of the action or lack of action of the juvenile
  309  probation officer and shall determine the action that is in the
  310  best interest of the public and the child. If the child meets
  311  the criteria requiring prosecution as an adult under s. 985.556,
  312  the state attorney shall request the court to transfer and
  313  certify the child for prosecution as an adult or shall provide
  314  written reasons to the court for not making such a request. In
  315  all other cases, The state attorney may:
  316         (a) File a petition for dependency;
  317         (b) File a petition under chapter 984;
  318         (c) File a petition for delinquency;
  319         (d) File a petition for delinquency with a motion to
  320  transfer and certify the child for prosecution as an adult;
  321         (e) File an information under s. 985.557;
  322         (f) Refer the case to a grand jury;
  323         (g) Refer the child to a diversionary, pretrial
  324  intervention, arbitration, or mediation program, or to some
  325  other treatment or care program if such program commitment is
  326  voluntarily accepted by the child or the child’s parents or
  327  legal guardian; or
  328         (h) Decline to file.
  329  
  330  ================= T I T L E  A M E N D M E N T ================
  331  And the title is amended as follows:
  332         Delete lines 7 - 21
  333  and insert:
  334         writing the criteria used in making the decision to
  335         transfer; requiring state attorneys to work
  336         cooperatively with the Department of Juvenile Justice
  337         to develop a uniform list of criteria to be used
  338         statewide in reporting decisions to transfer a child
  339         to adult court for prosecution; providing requirements
  340         for the report; requiring the state attorney to file
  341         the report with the court and the department;
  342         requiring the state attorney to submit specified
  343         information to the department; requiring the
  344         department to work with the state attorneys to create
  345         a report containing specified information; deleting
  346         provisions relating to the mandatory direct filing of
  347         children to adult court; prohibiting the transfer to
  348         adult court of a child found to be incompetent under
  349         certain circumstances; providing an exception;
  350         requiring the department to collect specified
  351         information; requiring the department to work with the
  352         Office of Program Policy Analysis and Government
  353         Accountability to generate a report of specified
  354         information; requiring the department to submit
  355         reports to the Governor and the Legislature by
  356         specified dates; amending s. 985.565, F.S.; requiring
  357         the Department of Corrections to make every reasonable
  358         effort to ensure that a child who is convicted and
  359         sentenced to a term in jail or prison be completely
  360         separated from adult offenders; conforming provisions
  361         to changes made by the act; amending ss. 985.03,
  362         985.04, and 985.15, F.S.; conforming provisions to
  363         changes