Florida Senate - 2019 SB 1102 By Senator Harrell 25-00346B-19 20191102__ 1 A bill to be entitled 2 An act relating to defendants with mental illness; 3 amending s. 916.105, F.S.; revising legislative 4 intent; amending s. 916.106, F.S.; redefining the term 5 “defendant”; creating s. 916.135, F.S.; requiring a 6 jail’s staff to screen each defendant booked into a 7 jail on misdemeanor charges using a certain instrument 8 to determine if there is an indication of a mental 9 health disorder; requiring an authorized professional 10 completing a certain evaluation to issue a 11 professional certificate if an evaluation of the 12 defendant demonstrates that the defendant appears to 13 meet the criteria for involuntary examination under 14 the Baker Act; requiring the jail, upon issuance of 15 the professional certificate, to immediately send a 16 copy of the certificate to the appropriate judge, 17 state attorney, and public defender or private 18 counsel; requiring the judge to sign a transport 19 order; providing requirements for such transport 20 order; requiring that the defendant, once at a 21 designated receiving facility, be assessed and 22 evaluated to determine whether he or she meets the 23 criteria to file a petition for involuntary inpatient 24 placement; providing procedures and requirements 25 depending on the evaluation outcome and decisions of 26 the defendant; providing for the return of the 27 defendant to the custody of the jail under certain 28 circumstances; requiring a judge to refer a defendant 29 charged with a misdemeanor crime for certain 30 assessment if a party or the court raises a concern 31 regarding the defendant’s competency to proceed due to 32 a mental illness; requiring the tolling of speedy 33 trial and the following of certain provisions if a 34 professional certificate is issued; requiring a judge 35 to hold an evidentiary hearing to make a certain 36 determination by clear and convincing evidence; 37 requiring a judge to enter certain orders to require 38 the defendant to complete a mental health assessment 39 under certain circumstances; providing for certain 40 considerations upon a defendant’s successful 41 completion of all recommendations from a mental health 42 assessment; providing an effective date. 43 44 Be It Enacted by the Legislature of the State of Florida: 45 46 Section 1. Present subsection (4) of section 916.105, 47 Florida Statutes, is redesignated as subsection (5), and a new 48 subsection (4) and subsections (6) and (7) are added to that 49 section, to read: 50 916.105 Legislative intent.— 51 (4) It is the intent of the Legislature that a defendant 52 who is charged with a misdemeanor and who has a mental illness, 53 intellectual disability, or autism be evaluated and provided 54 services in a community setting. 55 (6) It is the intent of the Legislature that law 56 enforcement agencies in this state provide law enforcement 57 officers with crisis intervention team training. 58 (7) It is the intent of the Legislature that, in all 59 instances in which a person meeting the criteria for involuntary 60 placement under the Baker Act commits a nonviolent misdemeanor, 61 that person be committed civilly under that act in lieu of, and 62 not in addition to, criminal prosecution. 63 Section 2. Subsection (6) of section 916.106, Florida 64 Statutes, is amended to read: 65 916.106 Definitions.—For the purposes of this chapter, the 66 term: 67 (6) “Defendant” means an adult, or a juvenile who is 68 prosecuted as an adult, who has been arraigned and charged with 69 a felony offense or a misdemeanor offense as described in s. 70 916.135 under the laws of this state. 71 Section 3. Section 916.135, Florida Statutes, is created to 72 read: 73 916.135 Mental health screening of defendants who commit 74 misdemeanors; mental health diversion program.— 75 (1) Within 24 hours after a defendant is booked into a jail 76 on a misdemeanor charge, the jail’s staff shall screen the 77 defendant using a standardized validated mental health screening 78 instrument to determine if there is an indication of a mental 79 health disorder. If there is an indication of a mental health 80 disorder, the defendant must be evaluated by an authorized 81 professional to determine if the person appears to meet the 82 criteria for involuntary examination under the Baker Act, as 83 provided in s. 394.463. 84 (a) If the evaluation demonstrates that the defendant 85 appears to meet the criteria for involuntary examination under 86 the Baker Act, the authorized professional completing the 87 evaluation must issue a professional certificate stating that he 88 or she has examined the person and finds that the person appears 89 to meet the criteria for involuntary examination and stating the 90 observations upon which that conclusion is based. 91 (b) Upon the issuance of a professional certificate, the 92 jail shall immediately send a copy of the certificate to the 93 assigned misdemeanor judge, or to a designated mental health 94 judge if available, who shall sign a transport order requiring 95 the sheriff or jail authorities to transport the defendant 96 within 48 hours to a designated receiving facility as defined in 97 s. 394.455(12) for further evaluation under the Baker Act 98 pursuant to the professional certificate. The jail shall also 99 send a copy of the professional certificate to the state 100 attorney and the public defender or private counsel. Such 101 transport order must indicate that the transfer is made with a 102 hold for jail custody notation so that the designated receiving 103 facility may only release the defendant back to jail custody, 104 and must reset the misdemeanor case for return to court within 105 14 days. 106 (c) Once at the designated receiving facility, the 107 defendant must be assessed and evaluated to determine whether he 108 or she meets the criteria to file a petition for involuntary 109 inpatient placement under the Baker Act, as provided in s. 110 394.467 111 1. If the defendant appears to meet the criteria for 112 involuntary inpatient placement under the Baker Act and refuses 113 voluntary treatment, the facility must file with the court a 114 petition for involuntary impatient placement, as provided in s. 115 394.467. Upon discharge from involuntary inpatient placement, 116 the involuntary inpatient treatment provider must submit a 117 written proposed outpatient treatment plan to the assigned 118 misdemeanor judge, state attorney, and public defender or 119 private counsel for the continued supervision and compliance of 120 the defendant. 121 2. If the defendant meets the criteria for involuntary 122 inpatient placement under the Baker Act and chooses to accept 123 the terms of a treatment plan on a voluntary basis, the 124 defendant, upon discharge from the designated receiving 125 facility, must be returned to court before the assigned judge 126 for issuance of an order releasing the defendant on his or her 127 own recognizance, on the condition that the defendant comply 128 with all aspects of the treatment plan. As a condition of 129 participating in a mental health diversion program, the 130 defendant must be required to authorize the release of 131 information and clinical records to appropriate persons to 132 ensure the continuity of the patient’s health care or mental 133 health care and to appear for all court appearances. The 134 defendant must be advised that failure to comply fully with any 135 aspect of the treatment plan or release order may cause the 136 court to issue a warrant for the defendant’s arrest and return 137 to jail. The defendant’s successful completion of the treatment 138 plan may also be a requirement of a diversion contract that the 139 state attorney may offer and the defendant may accept in 140 resolution of a misdemeanor charge. 141 (d) If the defendant does not meet the criteria for 142 involuntary inpatient placement under the Baker Act and the 143 defendant does not choose to accept the terms of an outpatient 144 treatment plan on a voluntary basis, the designated receiving 145 facility must further evaluate the defendant to determine if he 146 or she meets the criteria to file a petition for involuntary 147 outpatient placement under the Baker Act, as provided in s. 148 394.4655. 149 1. If the defendant meets the criteria for involuntary 150 outpatient placement under the Baker Act, the facility must file 151 with the court a petition for involuntary outpatient services, 152 along with a written proposed treatment plan, as provided in s. 153 394.4655. If necessary, the defendant may be returned to the 154 custody of the jail to await the hearing on involuntary 155 outpatient services. 156 2. The assigned judge shall promptly review the defendant’s 157 case and charges with the assigned assistant state attorney and 158 assistant public defender or private counsel. The parties shall 159 consider diverting the defendant’s case to a mental health 160 diversion program on the condition that the defendant must 161 comply with the involuntary outpatient placement treatment plan. 162 If the defendant is assigned an assistant public defender or 163 regional counsel or if private counsel is retained, a guardian 164 does not need to be appointed for the purpose of the involuntary 165 outpatient treatment statute. 166 (e) If the defendant does not meet the criteria for 167 involuntary placement under the Baker Act, as provided in s. 168 394.4655 or s. 394.467, but has a qualifying mental health 169 diagnosis and chooses to voluntarily participate in a mental 170 health diversion program, the defendant must be returned to 171 court before the assigned judge to be advised as provided for 172 under subparagraph (c)2. Qualifying mental health diagnoses 173 include schizophrenia spectrum and other psychotic disorders, 174 bipolar disorder, major depressive disorder, post-traumatic 175 stress disorder, or other disorders diagnosed by a qualified 176 professional, as defined in s. 394.455(38), and resulting in 177 serious functional impairment that substantially interferes with 178 or limits one or more major life activities. 179 (f) If a defendant admitted to a designated receiving 180 facility pursuant to this section does not meet the criteria for 181 involuntary inpatient placement or involuntary outpatient 182 placement under the Baker Act and the defendant does not choose 183 to accept the terms of a treatment plan on a voluntary basis, or 184 if the state attorney declines to offer a mental health 185 diversion contract to the defendant, the defendant must be 186 returned to the custody of the jail where his or her case must 187 proceed under the applicable rules of criminal procedure. 188 (2) At any stage of the criminal proceedings, if a party or 189 the court raises a concern regarding a defendant’s competency to 190 proceed due to a mental illness and the defendant is in jail 191 custody, the judge must order the jail medical staff to assess 192 the defendant for issuance of a professional certificate under 193 the Baker Act. If a professional certificate is issued, speedy 194 trial must immediately be tolled and the parties must follow the 195 procedures in paragraph (1)(b). 196 (a) If the jail medical staff finds that the defendant does 197 not meet the criteria for issuance of a professional certificate 198 under the Baker Act or if the defendant is not in jail custody, 199 the assigned judge on the misdemeanor case must promptly hold an 200 evidentiary hearing to determine whether clear and convincing 201 evidence exists to conclude that the defendant meets any of the 202 following criteria: 203 1. The defendant is manifestly incapable of surviving alone 204 or without the help of willing and responsible family or 205 friends, including available alternative services, and without 206 treatment the defendant is likely to suffer from neglect or 207 refuse to care for herself or himself and such neglect or 208 refusal poses a real and present threat of substantial harm to 209 the defendant’s well-being. 210 2. There is a substantial likelihood that in the near 211 future the defendant will inflict serious bodily harm on herself 212 or himself or another person, as evidenced by recent behavior 213 causing, attempting, or threatening such harm. 214 3. There is a substantial likelihood that a mental illness 215 played a central role in the behavior leading to the current 216 arrest, or there is a substantial likelihood that a mental 217 illness will lead to repeated arrests for criminal behavior if 218 the defendant does not receive treatment. 219 (b) If the assigned judge concludes that any of the 220 criteria in paragraph (a) is met, the judge must immediately 221 enter an order tolling speedy trial in the misdemeanor case and 222 enter an ex parte order stating that the person appears to meet 223 the criteria for involuntary examination and specifying the 224 findings on which that conclusion is based, as provided in s. 225 394.4655. The defendant is required to appear within 48 hours at 226 the nearest mental health treatment center to submit to a full 227 mental health assessment. If the defendant is in jail custody, 228 the assigned judge must execute an order directing the sheriff 229 or jail authorities to transport the defendant for purposes of 230 completing the assessment. The results of the assessment must be 231 immediately relayed to the assigned judge, who shall provide the 232 results to the state attorney and the public defender or private 233 counsel. The assigned judge then shall enter an order amending 234 the conditions of the defendant’s pretrial release to compel the 235 defendant to comply with all recommendations for treatment from 236 the assessment. The defendant must be advised in the order that 237 failure to comply with the order may result in the issuance of a 238 warrant revoking the defendant’s pretrial release and directing 239 the sheriff to arrest and return the defendant to the jail. 240 (c) Upon the defendant’s successful completion of all 241 recommendations from the mental health assessment pursuant to 242 this section, the state attorney shall consider dismissal of the 243 charges. If dismissal is deemed inappropriate by the state 244 attorney, the parties must consider referral of the defendant’s 245 case to mental health court or another available mental health 246 diversion program. Alternatively, the defendant may avail 247 herself or himself of the Rules of Criminal Procedure to contest 248 the misdemeanor charges. 249 Section 4. This act shall take effect July 1, 2019.