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         916.135Mental 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.