Florida Senate - 2016                          SENATOR AMENDMENT
       Bill No. SB 314
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                Floor: 1/AD/2R         .                                
             03/10/2016 11:15 AM       .                                

       Senator Diaz de la Portilla moved the following:
    1         Senate Amendment (with title amendment)
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsections (2) and (3) of section 985.556,
    6  Florida Statutes, are amended, and present subsections (4) and
    7  (5) of that section are redesignated as subsections (3) and (4),
    8  respectively, to read:
    9         985.556 Waiver of juvenile court jurisdiction; hearing.—
   10         (2) INVOLUNTARY DISCRETIONARY WAIVER.—Except as provided in
   11  subsection (3), The state attorney may file a motion requesting
   12  the court to transfer the child for criminal prosecution if the
   13  child was 14 years of age or older at the time the alleged
   14  delinquent act or violation of law was committed.
   16         (a) If the child was 14 years of age or older, and if the
   17  child has been previously adjudicated delinquent for an act
   18  classified as a felony, which adjudication was for the
   19  commission of, attempt to commit, or conspiracy to commit
   20  murder, sexual battery, armed or strong-armed robbery,
   21  carjacking, home-invasion robbery, aggravated battery,
   22  aggravated assault, or burglary with an assault or battery, and
   23  the child is currently charged with a second or subsequent
   24  violent crime against a person; or
   25         (b) If the child was 14 years of age or older at the time
   26  of commission of a fourth or subsequent alleged felony offense
   27  and the child was previously adjudicated delinquent or had
   28  adjudication withheld for or was found to have committed, or to
   29  have attempted or conspired to commit, three offenses that are
   30  felony offenses if committed by an adult, and one or more of
   31  such felony offenses involved the use or possession of a firearm
   32  or violence against a person;
   34  the state attorney shall request the court to transfer and
   35  certify the child for prosecution as an adult or shall provide
   36  written reasons to the court for not making such request, or
   37  proceed under s. 985.557(1). Upon the state attorney’s request,
   38  the court shall either enter an order transferring the case and
   39  certifying the case for trial as if the child were an adult or
   40  provide written reasons for not issuing such an order.
   41         Section 2. Paragraph (c) is added to subsection (1) of
   42  section 985.557, Florida Statutes, present subsection (2) of
   43  that section is amended, present subsections (3) and (4) of that
   44  section are redesignated as subsections (2) and (3),
   45  respectively, and a new subsection (4) and subsection (5) are
   46  added to that section, to read:
   47         985.557 Direct filing of an information; discretionary and
   48  mandatory criteria.—
   50         (c)1. A decision under this section to transfer a child to
   51  adult court for criminal prosecution, or a decision not to
   52  transfer a child eligible for direct file, shall be documented
   53  in writing by the state attorney in charge of the case and be
   54  signed by the child’s defense attorney or, if the child is not
   55  represented by counsel, by the child’s parent or guardian. The
   56  document shall be filed with the court at the disposition of the
   57  case. The state attorney shall include the following information
   58  in the written decision:
   59         a. Whether adult codefendants were involved in the case.
   60         b. The length of time the child spent in jail awaiting
   61  disposition.
   62         c. Whether any discovery has been conducted on the case at
   63  the time of transfer.
   64         d. Whether the child waived the right to go to trial.
   65         e. If the decision to transfer or not to transfer resulted
   66  in a plea agreement, the details of the plea agreement,
   67  including previous plea offers made by the state but not
   68  accepted by the child, and any conditions placed on the plea
   69  offer.
   70         f. Whether the prosecutor allowed the judge to sentence the
   71  child to a disposition other than what the prosecutor was
   72  offering in exchange for the child not being transferred to
   73  adult court.
   74         g. Whether the child had to waive statutory limits on
   75  secure detention in order to avoid a direct file transfer, and,
   76  if available, the amount of time the child who waived secure
   77  detention limits actually spent in secure detention.
   78         2. On or before the 15th of each month, the state attorney
   79  in each judicial circuit shall collect the information specified
   80  in subparagraph 1. for all cases disposed of the previous month
   81  and submit that documentation to the department for data
   82  collection.
   83         (2) MANDATORY DIRECT FILE.—
   84         (a) With respect to any child who was 16 or 17 years of age
   85  at the time the alleged offense was committed, the state
   86  attorney shall file an information if the child has been
   87  previously adjudicated delinquent for an act classified as a
   88  felony, which adjudication was for the commission of, attempt to
   89  commit, or conspiracy to commit murder, sexual battery, armed or
   90  strong-armed robbery, carjacking, home-invasion robbery,
   91  aggravated battery, or aggravated assault, and the child is
   92  currently charged with a second or subsequent violent crime
   93  against a person.
   94         (b) With respect to any child 16 or 17 years of age at the
   95  time an offense classified as a forcible felony, as defined in
   96  s. 776.08, was committed, the state attorney shall file an
   97  information if the child has previously been adjudicated
   98  delinquent or had adjudication withheld for three acts
   99  classified as felonies each of which occurred at least 45 days
  100  apart from each other. This paragraph does not apply when the
  101  state attorney has good cause to believe that exceptional
  102  circumstances exist which preclude the just prosecution of the
  103  juvenile in adult court.
  104         (c) The state attorney must file an information if a child,
  105  regardless of the child’s age at the time the alleged offense
  106  was committed, is alleged to have committed an act that would be
  107  a violation of law if the child were an adult, that involves
  108  stealing a motor vehicle, including, but not limited to, a
  109  violation of s. 812.133, relating to carjacking, or s.
  110  812.014(2)(c)6., relating to grand theft of a motor vehicle, and
  111  while the child was in possession of the stolen motor vehicle
  112  the child caused serious bodily injury to or the death of a
  113  person who was not involved in the underlying offense. For
  114  purposes of this section, the driver and all willing passengers
  115  in the stolen motor vehicle at the time such serious bodily
  116  injury or death is inflicted shall also be subject to mandatory
  117  transfer to adult court. “Stolen motor vehicle,” for the
  118  purposes of this section, means a motor vehicle that has been
  119  the subject of any criminal wrongful taking. For purposes of
  120  this section, “willing passengers” means all willing passengers
  121  who have participated in the underlying offense.
  122         (d)1. With respect to any child who was 16 or 17 years of
  123  age at the time the alleged offense was committed, the state
  124  attorney shall file an information if the child has been charged
  125  with committing or attempting to commit an offense listed in s.
  126  775.087(2)(a)1.a.-q., and, during the commission of or attempt
  127  to commit the offense, the child:
  128         a. Actually possessed a firearm or destructive device, as
  129  those terms are defined in s. 790.001.
  130         b. Discharged a firearm or destructive device, as described
  131  in s. 775.087(2)(a)2.
  132         c. Discharged a firearm or destructive device, as described
  133  in s. 775.087(2)(a)3., and, as a result of the discharge, death
  134  or great bodily harm was inflicted upon any person.
  135         2. Upon transfer, any child who is:
  136         a. Charged under sub-subparagraph 1.a. and who has been
  137  previously adjudicated or had adjudication withheld for a
  138  forcible felony offense or any offense involving a firearm, or
  139  who has been previously placed in a residential commitment
  140  program, shall be subject to sentencing under s. 775.087(2)(a),
  141  notwithstanding s. 985.565.
  142         b. Charged under sub-subparagraph 1.b. or sub-subparagraph
  143  1.c., shall be subject to sentencing under s. 775.087(2)(a),
  144  notwithstanding s. 985.565.
  145         3. Upon transfer, any child who is charged under this
  146  paragraph, but who does not meet the requirements specified in
  147  subparagraph 2., shall be sentenced under s. 985.565; however,
  148  if the court imposes a juvenile sanction, the court must commit
  149  the child to a high-risk or maximum-risk juvenile facility.
  150         4. This paragraph shall not apply if the state attorney has
  151  good cause to believe that exceptional circumstances exist that
  152  preclude the just prosecution of the child in adult court.
  153         5. The Department of Corrections shall make every
  154  reasonable effort to ensure that any child 16 or 17 years of age
  155  who is convicted and sentenced under this paragraph be
  156  completely separated such that there is no physical contact with
  157  adult offenders in the facility, to the extent that it is
  158  consistent with chapter 958.
  159         (4) TRANSFER PROHIBITION.—Notwithstanding any other law, a
  160  child who is eligible for direct file and who has previously
  161  been found to be incompetent but has not been restored to
  162  competency by a court may not be transferred to adult court for
  163  criminal prosecution. A transferred child who is found to be
  164  incompetent must be returned to the jurisdiction of the juvenile
  165  court.
  167         (a) Beginning January 1, 2017, the department shall collect
  168  data relating to children who qualify for direct file under this
  169  section and s. 985.556 regardless of the outcome of the case,
  170  including, but not limited to:
  171         1. Age.
  172         2. Race and ethnicity.
  173         3. Gender.
  174         4. Circuit and county of residence.
  175         5. Circuit and county of offense.
  176         6. Prior adjudicated offenses.
  177         7. Prior periods of probation.
  178         8. Previous contacts with law enforcement agencies or the
  179  court which result in a civil citation, arrest, or charges being
  180  filed with the state.
  181         9. Initial charges.
  182         10. Charges at disposition.
  183         11. Whether child codefendants were involved who were
  184  transferred to adult court.
  185         12. Whether the child was represented by counsel.
  186         13. Risk assessment instrument score.
  187         14. The child’s medical, mental health, substance abuse, or
  188  trauma history.
  189         15. The child’s history of mental impairment or disability
  190  related accommodations.
  191         16. The child’s history of abuse or neglect.
  192         17. The child’s history of foster care placements,
  193  including the number of prior placements.
  194         18. Whether the child has below-average intellectual
  195  functioning.
  196         19. Whether the child has received mental health services
  197  or treatment.
  198         20. Whether the child has been the subject of a child-in
  199  need-of-services or families-in-need-of-services petition or a
  200  dependency petition.
  201         21. Whether the child was transferred for criminal
  202  prosecution as an adult.
  203         22. The case resolution in juvenile court.
  204         23. The case resolution in adult court.
  205         24. Whether the child was represented by counsel or whether
  206  the child waived counsel.
  207         25. Information generated by the office of the state
  208  attorney in each judicial circuit under subparagraph (1)(c)1.
  209         (b) Beginning January 1, 2017, for a child transferred for
  210  criminal prosecution as an adult, the department shall also
  211  collect:
  212         1. Disposition data, including, but not limited to, whether
  213  the child received adult sanctions, juvenile sanctions, or
  214  diversion and, if sentenced to prison, the length of the prison
  215  sentence or the enhanced sentence; and
  216         2. Whether the child was previously found incompetent to
  217  proceed in juvenile court.
  218         (c) For every juvenile case transferred between July 1,
  219  2015, and June 30, 2016, the department shall work with the
  220  Office of Program Policy Analysis and Government Accountability
  221  to generate a report analyzing the aggregated data. The
  222  department must provide this report to the Governor, the
  223  President of the Senate, and the Speaker of the House of
  224  Representatives by January 31, 2017.
  225         (d) The department must work with the Office of Program
  226  Policy Analysis and Government Accountability to generate a
  227  report analyzing the aggregated data under paragraphs (a) and
  228  (b) on an annual basis. The department must provide this report
  229  to the Governor, the President of the Senate, and the Speaker of
  230  the House of Representatives no later than January 31 of the
  231  following calendar year.
  232         Section 3. Subsection (54) of section 985.03, Florida
  233  Statutes, is amended to read:
  234         985.03 Definitions.—As used in this chapter, the term:
  235         (54) “Waiver hearing” means a hearing provided for under s.
  236  985.556 s. 985.556(4).
  237         Section 4. Subsection (2) of section 985.04, Florida
  238  Statutes, is amended to read:
  239         985.04 Oaths; records; confidential information.—
  240         (2) Notwithstanding any other provisions of this chapter,
  241  the name, photograph, address, and crime or arrest report of a
  242  child:
  243         (a) Taken into custody if the child has been taken into
  244  custody by a law enforcement officer for a violation of law
  245  which, if committed by an adult, would be a felony;
  246         (b) Found by a court to have committed three or more
  247  violations of law which, if committed by an adult, would be
  248  misdemeanors;
  249         (c) Transferred to the adult system under s. 985.557,
  250  indicted under s. 985.56, or waived under s. 985.556;
  251         (d) Taken into custody by a law enforcement officer for a
  252  violation of law subject to s. 985.557(2)(b) or (d); or
  253         (d)(e) Transferred to the adult system but sentenced to the
  254  juvenile system under s. 985.565
  256  shall not be considered confidential and exempt from s.
  257  119.07(1) solely because of the child’s age.
  258         Section 5. Subsection (1) of section 985.15, Florida
  259  Statutes, is amended to read:
  260         985.15 Filing decisions.—
  261         (1) The state attorney may in all cases take action
  262  independent of the action or lack of action of the juvenile
  263  probation officer and shall determine the action that is in the
  264  best interest of the public and the child. If the child meets
  265  the criteria requiring prosecution as an adult under s. 985.556,
  266  the state attorney shall request the court to transfer and
  267  certify the child for prosecution as an adult or shall provide
  268  written reasons to the court for not making such a request. In
  269  all other cases, The state attorney may:
  270         (a) File a petition for dependency;
  271         (b) File a petition under chapter 984;
  272         (c) File a petition for delinquency;
  273         (d) File a petition for delinquency with a motion to
  274  transfer and certify the child for prosecution as an adult;
  275         (e) File an information under s. 985.557;
  276         (f) Refer the case to a grand jury;
  277         (g) Refer the child to a diversionary, pretrial
  278  intervention, arbitration, or mediation program, or to some
  279  other treatment or care program if such program commitment is
  280  voluntarily accepted by the child or the child’s parents or
  281  legal guardian; or
  282         (h) Decline to file.
  283         Section 6. Paragraphs (a) and (b) of subsection (4) of
  284  section 985.565, Florida Statutes, are amended to read:
  285         985.565 Sentencing powers; procedures; alternatives for
  286  juveniles prosecuted as adults.—
  288         (a) Adult sanctions.—
  289         1. Cases prosecuted on indictment.—If the child is found to
  290  have committed the offense punishable by death or life
  291  imprisonment, the child shall be sentenced as an adult. If the
  292  juvenile is not found to have committed the indictable offense
  293  but is found to have committed a lesser included offense or any
  294  other offense for which he or she was indicted as a part of the
  295  criminal episode, the court may sentence as follows:
  296         a. As an adult;
  297         b. Under chapter 958; or
  298         c. As a juvenile under this section.
  299         2. Other cases.—If a child who has been transferred for
  300  criminal prosecution pursuant to information or waiver of
  301  juvenile court jurisdiction is found to have committed a
  302  violation of state law or a lesser included offense for which he
  303  or she was charged as a part of the criminal episode, the court
  304  may sentence as follows:
  305         a. As an adult;
  306         b. Under chapter 958; or
  307         c. As a juvenile under this section.
  308         3. Notwithstanding any other provision to the contrary, if
  309  the state attorney is required to file a motion to transfer and
  310  certify the juvenile for prosecution as an adult under s.
  311  985.556(3) and that motion is granted, or if the state attorney
  312  is required to file an information under s. 985.557(2)(a) or
  313  (b), the court must impose adult sanctions.
  314         3.4. Any sentence imposing adult sanctions is presumed
  315  appropriate, and the court is not required to set forth specific
  316  findings or enumerate the criteria in this subsection as any
  317  basis for its decision to impose adult sanctions.
  318         4.5. When a child has been transferred for criminal
  319  prosecution as an adult and has been found to have committed a
  320  violation of state law, the disposition of the case may include
  321  the enforcement of any restitution ordered in any juvenile
  322  proceeding.
  323         (b) Juvenile sanctions.For juveniles transferred to adult
  324  court but who do not qualify for such transfer under s.
  325  985.556(3) or s. 985.557(2)(a) or (b), The court may impose
  326  juvenile sanctions under this paragraph for juveniles
  327  transferred to adult court. If juvenile sentences are imposed,
  328  the court shall, under this paragraph, adjudge the child to have
  329  committed a delinquent act. Adjudication of delinquency shall
  330  not be deemed a conviction, nor shall it operate to impose any
  331  of the civil disabilities ordinarily resulting from a
  332  conviction. The court shall impose an adult sanction or a
  333  juvenile sanction and may not sentence the child to a
  334  combination of adult and juvenile punishments. An adult sanction
  335  or a juvenile sanction may include enforcement of an order of
  336  restitution or probation previously ordered in any juvenile
  337  proceeding. However, if the court imposes a juvenile sanction
  338  and the department determines that the sanction is unsuitable
  339  for the child, the department shall return custody of the child
  340  to the sentencing court for further proceedings, including the
  341  imposition of adult sanctions. Upon adjudicating a child
  342  delinquent under subsection (1), the court may:
  343         1. Place the child in a probation program under the
  344  supervision of the department for an indeterminate period of
  345  time until the child reaches the age of 19 years or sooner if
  346  discharged by order of the court.
  347         2. Commit the child to the department for treatment in an
  348  appropriate program for children for an indeterminate period of
  349  time until the child is 21 or sooner if discharged by the
  350  department. The department shall notify the court of its intent
  351  to discharge no later than 14 days prior to discharge. Failure
  352  of the court to timely respond to the department’s notice shall
  353  be considered approval for discharge.
  354         3. Order disposition under ss. 985.435, 985.437, 985.439,
  355  985.441, 985.45, and 985.455 as an alternative to youthful
  356  offender or adult sentencing if the court determines not to
  357  impose youthful offender or adult sanctions.
  359  It is the intent of the Legislature that the criteria and
  360  guidelines in this subsection are mandatory and that a
  361  determination of disposition under this subsection is subject to
  362  the right of the child to appellate review under s. 985.534.
  363         Section 7. For the purpose of incorporating the amendment
  364  made by this act to sections 985.556 and 985.557, Florida
  365  Statutes, in a reference thereto, paragraph (a) of subsection
  366  (5) of section 985.265, Florida Statutes, is reenacted to read:
  367         985.265 Detention transfer and release; education; adult
  368  jails.—
  369         (5) The court shall order the delivery of a child to a jail
  370  or other facility intended or used for the detention of adults:
  371         (a) When the child has been transferred or indicted for
  372  criminal prosecution as an adult under part X, except that the
  373  court may not order or allow a child alleged to have committed a
  374  misdemeanor who is being transferred for criminal prosecution
  375  pursuant to either s. 985.556 or s. 985.557 to be detained or
  376  held in a jail or other facility intended or used for the
  377  detention of adults; however, such child may be held temporarily
  378  in a detention facility; or
  379         (b) When a child taken into custody in this state is wanted
  380  by another jurisdiction for prosecution as an adult.
  382  The child shall be housed separately from adult inmates to
  383  prohibit a child from having regular contact with incarcerated
  384  adults, including trusties. “Regular contact” means sight and
  385  sound contact. Separation of children from adults shall permit
  386  no more than haphazard or accidental contact. The receiving jail
  387  or other facility shall contain a separate section for children
  388  and shall have an adequate staff to supervise and monitor the
  389  child’s activities at all times. Supervision and monitoring of
  390  children includes physical observation and documented checks by
  391  jail or receiving facility supervisory personnel at intervals
  392  not to exceed 10 minutes. This subsection does not prohibit
  393  placing two or more children in the same cell. Under no
  394  circumstances shall a child be placed in the same cell with an
  395  adult.
  396         Section 8. This act shall take effect July 1, 2016.
  398  ================= T I T L E  A M E N D M E N T ================
  399  And the title is amended as follows:
  400         Delete everything before the enacting clause
  401  and insert:
  402                        A bill to be entitled                      
  403         An act relating to direct filing of juveniles;
  404         amending s. 985.556, F.S.; deleting provisions
  405         relating to the involuntary mandatory waiver of
  406         children by a state attorney; amending s. 985.557,
  407         F.S.; requiring a state attorney to document in
  408         writing specified information; requiring the state
  409         attorney to submit specified collected information to
  410         the Department of Juvenile Justice; deleting
  411         provisions relating to the mandatory direct filing of
  412         children to adult court; prohibiting the transfer to
  413         adult court of a child found to be incompetent under
  414         certain circumstances; requiring the department to
  415         collect specified information beginning on a certain
  416         date; requiring the department to work with the Office
  417         of Program Policy Analysis and Government
  418         Accountability to generate a report of specified
  419         information; requiring the department to submit
  420         reports to the Governor and the Legislature by
  421         specified dates; amending ss. 985.03, 985.04, 985.15,
  422         and 985.565, F.S.; conforming provisions to changes
  423         made by the act; reenacting s. 985.265(5), F.S.,
  424         relating to juvenile detention transfer and release
  425         and education, and adult jails, to incorporate the
  426         amendments made to ss. 985.556 and 985.557, F.S., in a
  427         reference thereto; providing an effective date.