Florida Senate - 2020                                     SB 610
       By Senator Powell
       30-00512-20                                            2020610__
    1                        A bill to be entitled                      
    2         An act relating to direct filing of an information;
    3         amending s. 985.265, F.S.; revising provisions
    4         concerning the housing of children held in detention;
    5         prohibiting a child who has been transferred to adult
    6         court for criminal prosecution pursuant to direct file
    7         from being held in a jail or other facility used for
    8         the detention of adults prior to a specified hearing
    9         to determine if the child should be prosecuted as an
   10         adult; amending s. 985.557, F.S.; deleting references
   11         to the state attorney’s discretion to direct file a
   12         juvenile; revising discretionary direct file criteria;
   13         requiring a court to advise a child and his or her
   14         parent or guardian of their right to a certain due
   15         process evidentiary hearing upon a state attorney
   16         filing an information transferring a child to adult
   17         court; authorizing the child or the child’s parent or
   18         guardian to request an evidentiary hearing; requiring
   19         the judge to conduct the hearing within a certain
   20         timeframe; requiring a judge to consider specified
   21         information and factors; authorizing a judge to
   22         consider certain reports; providing for continued
   23         jurisdiction with regard to the child; providing an
   24         exception; requiring the adult court to render an
   25         order that includes certain findings; authorizing
   26         review of the order; reenacting s. 985.556(3), F.S.,
   27         relating to involuntary mandatory waivers, to
   28         incorporate the amendments made to s. 985.557, F.S.,
   29         in a reference thereto; providing an effective date.
   31  Be It Enacted by the Legislature of the State of Florida:
   33         Section 1. Subsection (5) of section 985.265, Florida
   34  Statutes, is amended to read
   35         985.265 Detention transfer and release; education; adult
   36  jails.—
   37         (5) The court shall order the delivery of a child to a jail
   38  or other facility intended or used for the detention of adults:
   39         (a) When the child has been transferred or indicted for
   40  criminal prosecution as an adult under part X, except that:
   41         1. The court may not order or allow a child alleged to have
   42  committed a misdemeanor who is being transferred for criminal
   43  prosecution pursuant to either s. 985.556 or s. 985.557 to be
   44  detained or held in a jail or other facility intended or used
   45  for the detention of adults; however, such child may be held
   46  temporarily in a detention facility; and or
   47         2. A child who has been transferred for criminal
   48  prosecution as an adult pursuant to s. 985.557 may not be held
   49  in a jail or other facility intended or used for the detention
   50  of adults prior to a court finding, as a result of a hearing
   51  provided for under s. 985.557(3), that the child should be
   52  prosecuted as an adult; or
   53         (b) When a child taken into custody in this state is wanted
   54  by another jurisdiction for prosecution as an adult.
   56  The child shall be housed separately from adult inmates to
   57  prohibit a child from having regular contact with incarcerated
   58  adults, including trusties. “Regular contact” means sight and
   59  sound contact. Separation of children from adults shall permit
   60  no more than haphazard or accidental contact. The receiving jail
   61  or other facility shall contain a separate section for children
   62  and shall have an adequate staff to supervise and monitor the
   63  child’s activities at all times. Supervision and monitoring of
   64  children includes physical observation and documented checks by
   65  jail or receiving facility supervisory personnel at intervals
   66  not to exceed 10 minutes. This subsection does not prohibit
   67  placing two or more children in the same cell. Under no
   68  circumstances shall a child be placed in the same cell with an
   69  adult.
   70         Section 2. Section 985.557, Florida Statutes, is amended to
   71  read:
   72         985.557 Direct filing of an information; discretionary
   73  criteria.—
   75         (a) With respect to any child who was 14 or 15 years of age
   76  at the time the alleged offense was committed, the state
   77  attorney may file an information when in the state attorney’s
   78  judgment and discretion the public interest requires that adult
   79  sanctions be considered or imposed and when the offense charged
   80  is for the commission of, or attempt to commit, any of the
   81  following, or conspiracy to commit:
   82         1. Arson.;
   83         2. Sexual battery.;
   84         3. Robbery.;
   85         4. Kidnapping.;
   86         5. Aggravated child abuse.;
   87         6. Aggravated assault.;
   88         7. Aggravated stalking.;
   89         8. Murder.;
   90         9. Manslaughter.;
   91         10. Unlawful throwing, placing, or discharging of a
   92  destructive device or bomb.;
   93         11. Armed burglary in violation of s. 810.02(2)(b), or
   94  specified burglary of a dwelling or structure in violation of s.
   95  810.02(2)(c), or burglary with an assault or battery in
   96  violation of s. 810.02(2)(a).;
   97         12. Aggravated battery.;
   98         13. Any lewd or lascivious offense committed upon or in the
   99  presence of a person less than 16 years of age.;
  100         14. Carrying, displaying, using, threatening, or attempting
  101  to use a weapon or firearm during the commission of a felony.;
  102         15. Grand theft in violation of s. 812.014(2)(a).;
  103         16. Possessing or discharging any weapon or firearm on
  104  school property in violation of s. 790.115.;
  105         17. Home invasion robbery.;
  106         18. Carjacking.; or
  107         19. Grand theft of a motor vehicle in violation of s.
  108  812.014(2)(c)6. or grand theft of a motor vehicle valued at
  109  $20,000 or more in violation of s. 812.014(2)(b) if the child
  110  has a previous adjudication for grand theft of a motor vehicle
  111  in violation of s. 812.014(2)(c)6. or s. 812.014(2)(b).
  112         (b) With respect to any child who was 16 or 17 years of age
  113  at the time the alleged offense was committed, the state
  114  attorney may file an information when in the state attorney’s
  115  judgment and discretion the public interest requires that adult
  116  sanctions be considered or imposed. However, the state attorney
  117  may not file an information on a child charged with a
  118  misdemeanor, unless the child has had at least two previous
  119  adjudications or adjudications withheld for delinquent acts, one
  120  of which involved an offense classified as a felony under state
  121  law.
  122         (2)NOTIFICATION TO PARENT OR GUARDIAN.—Upon a state
  123  attorney filing an information transferring a child to adult
  124  court, the court must advise the child and his or her parent or
  125  guardian that the child has the right to a due process
  126  evidentiary hearing before a judge, and the child or the parent
  127  or guardian may request such evidentiary hearing.
  129  Notwithstanding any other law, and in all cases, a child charged
  130  with a crime or his or her parent or guardian may request a due
  131  process evidentiary hearing after the state attorney’s filing of
  132  an information in adult court under this section.
  133         (a) The judge shall conduct the hearing within 30 days
  134  after the request, excluding Saturdays, Sundays, and legal
  135  holidays, unless the child or the child’s attorney shows good
  136  cause for a delay. The purpose of the hearing is for the court
  137  to determine whether it is necessary for the community’s
  138  protection that the child be prosecuted in adult court. The
  139  judge shall consider all of the following:
  140         1.Evaluations and assessments completed by the department.
  141         2.The sophistication and maturity of the child, including:
  142         a.The effect, if any, of immaturity, impetuosity, or
  143  failure to appreciate risks and consequences of the child’s
  144  participation in the alleged offense.
  145         b.The child’s age, maturity, intellectual capacity, and
  146  mental and emotional health at the time of the alleged offense.
  147         c.The effect, if any, of characteristics attributable to
  148  the child’s youth on the child’s judgment.
  149         3.The record and previous history of the child, including:
  150         a.Previous contacts with the department, the Department of
  151  Corrections, the Department of Children and Families, other law
  152  enforcement agencies, and the courts.
  153         b.Prior periods of probation.
  154         c.Prior adjudications that the child committed a
  155  delinquent act or violation of law, with greater weight being
  156  given if a court previously found that the child committed a
  157  delinquent act or violation of law involving violence to
  158  persons.
  159         d.Prior commitments to institutions of the department, the
  160  Department of Corrections, or agencies under contract with
  161  either department.
  162         e.Any history of trauma, abuse or neglect, foster care
  163  placements, failed adoption, fetal alcohol syndrome, exposure to
  164  controlled substances at birth, or below-average intellectual
  165  functioning.
  166         f.Identification of the child as a student requiring
  167  exceptional student education or having previously received
  168  psychological services.
  169         4.The nature of the alleged offense and the child’s
  170  participation in it, including:
  171         a.Whether the alleged offense is punishable by death or
  172  life imprisonment.
  173         b.Whether the alleged offense was against persons or
  174  property.
  175         c.Whether the alleged offense is alleged to have been
  176  committed in an aggressive, violent, or premeditated manner.
  177         d.The extent of the child’s participation in the alleged
  178  offense.
  179         e.The effect, if any, of familial pressure or peer
  180  pressure on the child’s actions.
  181         5.The prospects for adequate protection of the public and
  182  the likelihood of reasonable rehabilitation of the child, if the
  183  child is found to have committed the alleged offense:
  184         a.By the use of procedures, services, and facilities
  185  currently available to the juvenile court.
  186         b.By the use of procedures, services, and facilities
  187  currently available to the adult court, including whether the
  188  lowest permissible sentence under the Criminal Punishment Code
  189  is a nonstate prison sanction.
  190         6.Whether the child could obtain habilitative or
  191  rehabilitative services available in the juvenile justice
  192  system.
  193         7.Whether the child could receive a sentence in juvenile
  194  court which would provide adequate safety and protection for the
  195  community.
  196         8.Whether the child’s best interests would be served by
  197  prosecuting the child in juvenile court.
  198         (b)The judge may consider any reports that may assist the
  199  court, including prior predisposition reports, psychosocial
  200  assessments, individual educational plans, developmental
  201  assessments, school records, abuse or neglect reports, home
  202  studies, protective investigations, and psychological and
  203  psychiatric evaluations. The child, the child’s parents or legal
  204  guardians, his or her defense counsel, and the state attorney
  205  may examine these reports and, at the hearing, question the
  206  parties responsible for creating them.
  207         (c)The adult court shall retain jurisdiction unless the
  208  court finds by a preponderance of the evidence that the factors
  209  listed in paragraph (a) support returning the child to juvenile
  210  court.
  211         (d)The adult court shall render an order including
  212  specific findings of fact and the reasons for its decision. The
  213  prosecution and defense may seek immediate review of the order
  214  through interlocutory appeal. The order shall be reviewable on
  215  appeal under the Florida Rules of Appellate Procedure.
  216         (4)(2) EFFECT OF DIRECT FILE.—
  217         (a) Once a child has been transferred for criminal
  218  prosecution pursuant to an information and has been found to
  219  have committed the presenting offense or a lesser included
  220  offense, the child shall be handled thereafter in every respect
  221  as if an adult for any subsequent violation of state law, unless
  222  the court imposes juvenile sanctions under s. 985.565.
  223         (b) When a child is transferred for criminal prosecution as
  224  an adult, the court shall immediately transfer and certify to
  225  the adult circuit court all felony cases pertaining to the
  226  child, for prosecution of the child as an adult, which have not
  227  yet resulted in a plea of guilty or nolo contendere or in which
  228  a finding of guilt has not been made. If a child is acquitted of
  229  all charged offenses or lesser included offenses contained in
  230  the original case transferred to adult court, all felony cases
  231  that were transferred to adult court as a result of this
  232  paragraph shall be subject to the same penalties to which such
  233  cases would have been subject before being transferred to adult
  234  court.
  235         (c) When a child has been transferred for criminal
  236  prosecution as an adult and has been found to have committed a
  237  violation of state law, the disposition of the case may be made
  238  under s. 985.565 and may include the enforcement of any
  239  restitution ordered in any juvenile proceeding.
  240         (5)(3)CHARGES INCLUDED ON INFORMATION.—An information
  241  filed pursuant to this section may include all charges that are
  242  based on the same act, criminal episode, or transaction as the
  243  primary offenses.
  244         Section 3. For the purpose of incorporating the amendment
  245  made by this act to section 985.557, Florida Statutes, in a
  246  reference thereto, subsection (3) of section 985.556, Florida
  247  Statutes, is reenacted to read:
  248         985.556 Waiver of juvenile court jurisdiction; hearing.—
  250         (a) If the child was 14 years of age or older, and if the
  251  child has been previously adjudicated delinquent for an act
  252  classified as a felony, which adjudication was for the
  253  commission of, attempt to commit, or conspiracy to commit
  254  murder, sexual battery, armed or strong-armed robbery,
  255  carjacking, home-invasion robbery, aggravated battery,
  256  aggravated assault, or burglary with an assault or battery, and
  257  the child is currently charged with a second or subsequent
  258  violent crime against a person; or
  259         (b) If the child was 14 years of age or older at the time
  260  of commission of a fourth or subsequent alleged felony offense
  261  and the child was previously adjudicated delinquent or had
  262  adjudication withheld for or was found to have committed, or to
  263  have attempted or conspired to commit, three offenses that are
  264  felony offenses if committed by an adult, and one or more of
  265  such felony offenses involved the use or possession of a firearm
  266  or violence against a person;
  268  the state attorney shall request the court to transfer and
  269  certify the child for prosecution as an adult or shall provide
  270  written reasons to the court for not making such request, or
  271  proceed under s. 985.557(1). Upon the state attorney’s request,
  272  the court shall either enter an order transferring the case and
  273  certifying the case for trial as if the child were an adult or
  274  provide written reasons for not issuing such an order.
  275         Section 4. This act shall take effect July 1, 2020.