Florida Senate - 2021                                    SB 1854
       
       
        
       By Senator Farmer
       
       
       
       
       
       34-00776-21                                           20211854__
    1                        A bill to be entitled                      
    2         An act relating to defendants with a traumatic brain
    3         injury; creating s. 916.181, F.S.; defining the term
    4         “traumatic brain injury”; requiring the Agency for
    5         Persons with Disabilities, along with the Department
    6         of Children and Families, to establish and implement
    7         within each judicial circuit a diversion program for
    8         defendants who are found to have a traumatic brain
    9         injury; specifying circumstances under which a
   10         defendant is incompetent to proceed due to a traumatic
   11         brain injury; providing for the required evaluation of
   12         such defendants by mental health experts; authorizing
   13         a court to commit such defendants to a traumatic brain
   14         injury diversion program or to appoint additional
   15         experts under certain circumstances; authorizing a
   16         court to require a hearing with testimony before
   17         committing a defendant to a traumatic brain injury
   18         diversion program; requiring that a defendant who is
   19         found incompetent to proceed due to traumatic brain
   20         injury be sent to a traumatic brain injury diversion
   21         program and receive mandated treatment; requiring a
   22         state attorney to dismiss the charges against a
   23         defendant who successfully completes the diversion
   24         program; requiring the department to assist such
   25         defendants with transitioning into a certain long-term
   26         care partnership program; providing an effective date.
   27          
   28  Be It Enacted by the Legislature of the State of Florida:
   29  
   30         Section 1. Section 916.181, Florida Statutes, is created to
   31  read:
   32         916.181 Traumatic brain injury diversion program.—
   33         (1) As used in this section, the term “traumatic brain
   34  injury” means a disruption in the normal function of the brain
   35  which can be caused by a bump, blow, or jolt to the head or a
   36  penetrating head injury.
   37         (2) The agency, along with the department, shall establish
   38  and implement within each judicial circuit in this state a
   39  diversion program for defendants who have a traumatic brain
   40  injury and are thus incompetent to proceed.
   41         (3) A defendant is incompetent to proceed within the
   42  meaning of this chapter if due to a traumatic brain injury the
   43  defendant does not have sufficient present ability to consult
   44  with her or his lawyer with a reasonable degree of rational
   45  understanding or if the defendant has no rational or factual
   46  understanding of the proceedings against her or him.
   47         (4) Mental health experts appointed pursuant to s. 916.115
   48  shall first determine whether the defendant has a traumatic
   49  brain injury and, if so, consider the factors related to the
   50  issue of whether the defendant meets the criteria for
   51  incompetence to proceed as described in subsection (3). A
   52  defendant must be evaluated by no fewer than two experts before
   53  the court commits the defendant to a traumatic brain injury
   54  diversion program, except if one expert finds that the defendant
   55  is incompetent to proceed due to a traumatic brain injury and
   56  the parties stipulate to that finding, the court may commit the
   57  defendant to a diversion program under this section or the court
   58  may appoint no more than two additional experts to evaluate the
   59  defendant. Notwithstanding any stipulation by the state and the
   60  defendant, the court may require a hearing with testimony from
   61  the expert or experts before ordering the commitment of a
   62  defendant to a traumatic brain injury diversion program.
   63         (5) A defendant who is found incompetent to proceed due to
   64  a traumatic brain injury shall be sent to a traumatic brain
   65  injury diversion program, which must be an in-patient civil
   66  facility, and receive mandated treatment based on her or his
   67  evaluation. Upon the defendant’s successful completion of the
   68  mandated traumatic brain injury diversion program, the state
   69  attorney’s office shall dismiss the charges against the
   70  defendant.
   71         (6) The department shall assist the defendant with
   72  transitioning into a long-term care partnership program under
   73  chapter 409.
   74         Section 2. This act shall take effect July 1, 2021.