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