Bill Text: AZ HB2238 | 2010 | Forty-ninth Legislature 2nd Regular | Engrossed
Bill Title: Sexual offenses; probation; sentencing
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2010-05-07 - Governor Signed [HB2238 Detail]
Download: Arizona-2010-HB2238-Engrossed.html
|
Senate Engrossed House Bill |
|
State of Arizona House of Representatives Forty-ninth Legislature Second Regular Session 2010
|
|
HOUSE BILL 2238 |
|
|
|
|
AN ACT
amending title 13, chapter 7, Arizona Revised Statutes, by adding section 13‑709.05; amending section 13-901, Arizona Revised Statutes, as amended by laws 2009, first special session, chapter 5, section 2; repealing section 13‑901, Arizona Revised Statutes, as amended by laws 2009, first regular session, chapter 125, section 1; amending sections 13-1402, 13-1403 and 36‑3701, Arizona Revised Statutes; blending multiple enactments; relating to sexual offenses.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 13, chapter 7, Arizona Revised Statutes, is amended by adding section 13-709.05, to read:
13-709.05. Special sentencing provisions; sexual offenses
A. A person who is convicted of a felony violation of section 13-1402 or 13-1403 and who has two or more historical prior felony convictions for a violation of section 13-1402 or 13-1403 involving indecent exposure or public sexual indecency to a minor who is under fifteen years of age shall be sentenced to a term of imprisonment as follows:
Mitigated Minimum Presumptive Maximum Aggravated
6 years 8 years 10 years 12 years 15 years
b. The presumptive term imposed pursuant to this section may be mitigated or aggravated pursuant to section 13-701, subsections D and E.
Sec. 2. Section 13-901, Arizona Revised Statutes, as amended by Laws 2009, first special session, chapter 5, section 2, is amended to read:
13-901. Probation
A. If a person who has been convicted of an offense is eligible for probation, the court may suspend the imposition or execution of sentence and, if so, shall without delay place the person on intensive probation supervision pursuant to section 13‑913 or supervised or unsupervised probation on such terms and conditions as the law requires and the court deems appropriate, including participation in any programs authorized in title 12, chapter 2, article 11. If a person is not eligible for probation, imposition or execution of sentence shall not be suspended or delayed. If the court imposes probation, it may also impose a fine as authorized by chapter 8 of this title. If probation is granted the court shall impose a condition that the person waive extradition for any probation revocation procedures and it shall order restitution pursuant to section 13‑603, subsection C where there is a victim who has suffered economic loss. When granting probation to an adult the court, as a condition of probation, shall assess a monthly fee of not less than sixty-five dollars unless, after determining the inability of the probationer to pay the fee, the court assesses a lesser fee. This fee is not subject to any surcharge. In justice and municipal courts the fee shall only be assessed when the person is placed on supervised probation. For persons placed on probation in the superior court, the fee shall be paid to the clerk of the superior court and the clerk of the court shall pay all monies collected from this fee to the county treasurer for deposit in the adult probation services fund established by section 12‑267. For persons placed on supervised probation in the justice court, the fee shall be paid to the justice court and the justice court shall transmit all of the monies to the county treasurer for deposit in the adult probation services fund established by section 12‑267. For persons placed on supervised probation in the municipal court, the fee shall be paid to the municipal court. The municipal court shall transmit all of the monies to the city treasurer who shall transmit the monies to the county treasurer for deposit in the adult probation services fund established by section 12‑267. Any amount assessed pursuant to this subsection shall be used to supplement monies used for the salaries of adult probation and surveillance officers and for support of programs and services of the superior court adult probation departments.
B. The period of probation shall be determined according to section 13‑902, except that if a person is released pursuant to section 31-233, subsection B and community supervision is waived pursuant to section 13-603, subsection K, the court shall extend the period of probation by the amount of time the director of the state department of corrections approves for the inmate's temporary release.
C. The court, in its discretion, may issue a warrant for the rearrest of the defendant and may modify or add to the conditions or, if the defendant commits an additional offense or violates a condition, may revoke probation in accordance with the rules of criminal procedure at any time before the expiration or termination of the period of probation. If the court revokes the defendant's probation and the defendant is serving more than one probationary term concurrently, the court may sentence the person to terms of imprisonment to be served consecutively.
D. At any time during the probationary term of the person released on probation, any probation officer, without warrant or other process and at any time until the final disposition of the case, may rearrest any person and bring the person before the court.
E. The court, on its own initiative or on application of the probationer, after notice and an opportunity to be heard for the prosecuting attorney and, on request, the victim, may terminate the period of probation or intensive probation and discharge the defendant at a time earlier than that originally imposed if in the court's opinion the ends of justice will be served and if the conduct of the defendant on probation warrants it.
F. When granting probation the court may require that the defendant be imprisoned in the county jail at whatever time or intervals, consecutive or nonconsecutive, the court shall determine, within the period of probation, as long as the period actually spent in confinement does not exceed one year or the maximum period of imprisonment permitted under chapter 7 of this title, whichever is the shorter.
G. If the defendant is placed on lifetime probation and has served one year in the county jail as a term of probation, the court may require that the defendant be additionally imprisoned in the county jail at whatever time or intervals, consecutive or nonconsecutive, the court shall determine, within the period of probation if the defendant's probation is revoked by the court and the defendant is subsequently reinstated on probation. The period actually spent in confinement as a term of being reinstated on probation shall not exceed one year or when including the initial one year period of incarceration imposed as a term of probation, the maximum period of imprisonment permitted under chapter 7 of this title, whichever is the shorter.
G. H. If restitution is made a condition of probation, the court shall fix the amount of restitution and the manner of performance pursuant to chapter 8 of this title.
H. I. When granting probation, the court shall set forth at the time of sentencing and on the record the factual and legal reasons in support of each sentence.
I. J. If the defendant meets the criteria set forth in section 13‑901.01 or 13‑3422, the court may place the defendant on probation pursuant to either section. If a defendant is placed on probation pursuant to section 13‑901.01 or 13‑3422, the court may impose any term of probation that is authorized pursuant to this section and that is not in violation of section 13‑901.01.
Sec. 3. Repeal
Section 13-901, Arizona Revised Statutes, as amended by Laws 2009, first regular session, chapter 125, section 1, is repealed.
Sec. 4. Section 13-1402, Arizona Revised Statutes, is amended to read:
13-1402. Indecent exposure; exception; classification
A. A person commits indecent exposure if he or she exposes his or her genitals or anus or she exposes the areola or nipple of her breast or breasts and another person is present, and the defendant is reckless about whether the other person, as a reasonable person, would be offended or alarmed by the act.
B. Indecent exposure does not include an act of breast-feeding by a mother.
C. Indecent exposure to a person who is fifteen or more years of age is a class 1 misdemeanor. Indecent exposure to a person who is under fifteen years of age is a class 6 felony.
D. A person who is convicted of a felony violation of this section and who has two or more historical prior felony convictions for a violation of this section or section 13-1403 involving indecent exposure or public sexual indecency to a minor who is under fifteen years of age shall be sentenced pursuant to section 13-709.05.
Sec. 5. Section 13-1403, Arizona Revised Statutes, is amended to read:
13-1403. Public sexual indecency; public sexual indecency to a minor; classification
A. A person commits public sexual indecency by intentionally or knowingly engaging in any of the following acts, if another person is present, and the defendant is reckless about whether such other person, as a reasonable person, would be offended or alarmed by the act:
1. An act of sexual contact.
2. An act of oral sexual contact.
3. An act of sexual intercourse.
4. An act of bestiality.
B. A person commits public sexual indecency to a minor if the person intentionally or knowingly engages in any of the acts listed in subsection A and such person is reckless about whether a minor who is under the age of fifteen years of age is present.
C. Public sexual indecency is a class 1 misdemeanor. Public sexual indecency to a minor is a class 5 felony.
D. A person who is convicted of a felony violation of this section and who has two or more historical prior felony convictions for a violation of this section or section 13-1402 involving indecent exposure or public sexual indecency to a minor who is under fifteen years of age shall be sentenced pursuant to section 13-709.05.
Sec. 6. Section 36-3701, Arizona Revised Statutes, is amended to read:
36-3701. Definitions
In this article, unless the context otherwise requires:
1. "Agency" means any agency that is authorized to direct the release of a person who is serving a sentence or term of confinement or who is receiving treatment, including a state or federal prison, a county jail and the Arizona state hospital.
2. "Competent professional" means a person who is:
(a) Familiar with the state's sexually violent persons statutes and sexual offender treatment programs available in this state.
(b) Approved by the superior court as meeting court approved guidelines.
3. "Conviction" includes a finding of guilt at any time for a sexually violent offense or an order of the juvenile court adjudicating the person delinquent for any sexually violent offense.
4. "Less restrictive alternative" means court ordered treatment in a setting that is less restrictive than total confinement and that is conducted in a setting approved by the superintendent of the state hospital.
5. "Mental disorder" means a paraphilia, personality disorder or conduct disorder or any combination of paraphilia, personality disorder and conduct disorder that predisposes a person to commit sexual acts to such a degree as to render the person a danger to the health and safety of others.
6. "Sexually violent offense" means any of the following:
(a) Indecent exposure to a person who is under fifteen years of age pursuant to section 13-1402, public sexual indecency to a minor pursuant to section 13-1403, sexual conduct with a minor pursuant to section 13‑1405, sexual assault pursuant to section 13‑1406, molestation of a child pursuant to section 13‑1410, continuous sexual abuse of a child pursuant to section 13‑1417 or sexual assault of a spouse if the offense was committed before the effective date of this amendment to this section August 12, 2005.
(b) Second degree murder pursuant to section 13‑1104, first degree murder pursuant to section 13‑1105, assault pursuant to section 13‑1203, aggravated assault pursuant to section 13‑1204, unlawful imprisonment pursuant to section 13‑1303, kidnapping pursuant to section 13‑1304 or burglary in the first degree pursuant to section 13‑1508 if the court at the time of sentencing or civil commitment proceedings determines beyond a reasonable doubt that the act was sexually motivated pursuant to section 13‑118.
(c) An attempt, a solicitation, a facilitation or a conspiracy to commit an offense listed in subdivision (a) or (b) of this paragraph.
(d) An act committed in another jurisdiction that if committed in this state would be a sexually violent offense listed in subdivision (a) or (b) of this paragraph.
(e) A conviction for a felony offense that was in effect before September 1, 1978 and that if committed on or after September 1, 1978 would be comparable to a sexually violent offense listed in subdivision (a) or (b) of this paragraph.
7. "Sexually violent person" means a person to whom both of the following apply:
(a) Has ever been convicted of or found guilty but insane of a sexually violent offense or was charged with a sexually violent offense and was determined incompetent to stand trial.
(b) Has a mental disorder that makes the person likely to engage in acts of sexual violence.
