Bill Text: FL S0840 | 2023 | Regular Session | Introduced
Bill Title: Prosecuting Children as Adults
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2023-05-05 - Died in Criminal Justice [S0840 Detail]
Download: Florida-2023-S0840-Introduced.html
Florida Senate - 2023 SB 840 By Senator Powell 24-01622-23 2023840__ 1 A bill to be entitled 2 An act relating to prosecuting children as adults; 3 amending s. 985.265, F.S.; prohibiting a jail or other 4 facility intended or used for the detention of adults 5 from holding a child who has been transferred to adult 6 court for criminal prosecution before a specified 7 hearing to determine if the child should be prosecuted 8 as an adult, unless the child waives his or her right 9 to such hearing; amending s. 985.556, F.S.; deleting 10 provisions requiring a state attorney to request a 11 court to transfer and certify a child for prosecution 12 as an adult or to provide written reasons to the court 13 for not making such request, or to proceed under 14 specified provision; amending s. 985.557, F.S.; 15 deleting references to the state attorney’s discretion 16 to direct file a juvenile; revising discretionary 17 direct file criteria; requiring a court to advise a 18 child and his or her parent or guardian of the child’s 19 right to a certain due process evidentiary hearing 20 upon a state attorney filing an information 21 transferring a child to adult court; requiring that 22 the child or the child’s parent or guardian receive a 23 due process evidentiary hearing; requiring the judge 24 to conduct the hearing within a certain timeframe; 25 requiring a judge to consider specified information 26 and factors; authorizing a judge to consider certain 27 reports; providing for continued jurisdiction with 28 regard to the child; providing an exception; requiring 29 the adult court to render an order that includes 30 certain findings; authorizing review of the order; 31 amending ss. 985.15 and 985.565, F.S.; conforming 32 provisions to changes made by the act; amending s. 33 985.03, F.S.; conforming a cross-reference; providing 34 an effective date. 35 36 Be It Enacted by the Legislature of the State of Florida: 37 38 Section 1. Subsection (5) of section 985.265, Florida 39 Statutes, is amended to read: 40 985.265 Detention transfer and release; education; adult 41 jails.— 42 (5) The court shall order the delivery of a child to a jail 43 or other facility intended or used for the detention of adults: 44 (a) When the child has been transferred or indicted for 45 criminal prosecution as an adult under part X, except that: 46 1. The court may not order or allow a child alleged to have 47 committed a misdemeanor who is being transferred for criminal 48 prosecution pursuant to either s. 985.556 or s. 985.557 to be 49 detained or held in a jail or other facility intended or used 50 for the detention of adults; however, such child may be held 51 temporarily in a detention facility; and 52 2. A child who has been transferred for criminal 53 prosecution as an adult pursuant to s. 985.557 may not be held 54 in a jail or other facility intended or used for the detention 55 of adults before a court finding, as a result of a hearing 56 provided for under s. 985.557(3), that the child should be 57 prosecuted as an adult, unless the child waives his or her right 58 to such hearing; or 59 (b) When a child taken into custody in this state is wanted 60 by another jurisdiction for prosecution as an adult. 61 62 The child shall be housed separately from adult inmates to 63 prohibit a child from having regular contact with incarcerated 64 adults, including trusties. “Regular contact” means sight and 65 sound contact. Separation of children from adults shall permit 66 no more than haphazard or accidental contact. The receiving jail 67 or other facility shall contain a separate section for children 68 and shall have an adequate staff to supervise and monitor the 69 child’s activities at all times. Supervision and monitoring of 70 children includes physical observation and documented checks by 71 jail or receiving facility supervisory personnel at intervals 72 not to exceed 10 minutes. This subsection does not prohibit 73 placing two or more children in the same cell. Under no 74 circumstances shall a child be placed in the same cell with an 75 adult. 76 Section 2. Subsections (2) and (3) of section 985.556, 77 Florida Statutes, are amended to read: 78 985.556 Waiver of juvenile court jurisdiction; hearing.— 79 (2) INVOLUNTARY DISCRETIONARY WAIVER.—Except as provided in80subsection (3),The state attorney may file a motion requesting 81 the court to transfer the child for criminal prosecution if the 82 child was 14 years of age or older at the time the alleged 83 delinquent act or violation of law was committed. 84(3) INVOLUNTARY MANDATORY WAIVER.—85(a) If the child was 14 years of age or older, and if the86child has been previously adjudicated delinquent for an act87classified as a felony, which adjudication was for the88commission of, attempt to commit, or conspiracy to commit89murder, sexual battery, armed or strong-armed robbery,90carjacking, home-invasion robbery, aggravated battery,91aggravated assault, or burglary with an assault or battery, and92the child is currently charged with a second or subsequent93violent crime against a person; or94(b) If the child was 14 years of age or older at the time95of commission of a fourth or subsequent alleged felony offense96and the child was previously adjudicated delinquent or had97adjudication withheld for or was found to have committed, or to98have attempted or conspired to commit, three offenses that are99felony offenses if committed by an adult, and one or more of100such felony offenses involved the use or possession of a firearm101or violence against a person;102 103the state attorney shall request the court to transfer and104certify the child for prosecution as an adult or shall provide105written reasons to the court for not making such request, or106proceed under s. 985.557(1). Upon the state attorney’s request,107the court shall either enter an order transferring the case and108certifying the case for trial as if the child were an adult or109provide written reasons for not issuing such an order.110 Section 3. Section 985.557, Florida Statutes, is amended to 111 read: 112 985.557 Prosecuting children as adultsDirect filing of an113information; discretionary criteria.— 114 (1) DISCRETIONARY PROSECUTION OF CHILDREN AS ADULTSDIRECT115FILE.— 116(a) With respect to any child who was 14 or 15 years of age117at the time the alleged offense was committed, the state118attorney may file an information when in the state attorney’s119judgment and discretion the public interest requires that adult120sanctions be considered or imposed and when the offense charged121is for the commission of, attempt to commit, or conspiracy to122commit:1231. Arson;1242. Sexual battery;1253. Robbery;1264. Kidnapping;1275. Aggravated child abuse;1286. Aggravated assault;1297. Aggravated stalking;1308. Murder;1319. Manslaughter;13210. Unlawful throwing, placing, or discharging of a133destructive device or bomb;13411. Armed burglary in violation of s. 810.02(2)(b) or135specified burglary of a dwelling or structure in violation of s.136810.02(2)(c), or burglary with an assault or battery in137violation of s. 810.02(2)(a);13812. Aggravated battery;13913. Any lewd or lascivious offense committed upon or in the140presence of a person less than 16 years of age;14114. Carrying, displaying, using, threatening, or attempting142to use a weapon or firearm during the commission of a felony;14315. Grand theft in violation of s. 812.014(2)(a);14416. Possessing or discharging any weapon or firearm on145school property in violation of s. 790.115;14617. Home invasion robbery;14718. Carjacking; or14819. Grand theft of a motor vehicle in violation of s.149812.014(2)(c)6. or grand theft of a motor vehicle valued at150$20,000 or more in violation of s. 812.014(2)(b) if the child151has a previous adjudication for grand theft of a motor vehicle152in violation of s. 812.014(2)(c)6. or s. 812.014(2)(b).153(b)With respect to any child who was 16 or 17 years of age 154 at the time the alleged forcible felony, as defined in s. 155 776.08, offense was committed, the state attorney may file an 156 information whenin the state attorney’s judgment and discretion157 the public interest requires that adult sanctions be considered 158 or imposed. However, the state attorney may not file an 159 information on a child charged with a misdemeanor, unless the 160 child has had at least two previous adjudicationsor161adjudications withheldfor delinquent acts, one of which 162 involved an offense classified as a forcible felony as defined 163 in s. 776.08under state law. 164 (2) NOTIFICATION TO PARENT OR GUARDIAN.—Upon a state 165 attorney filing an information transferring a child to adult 166 court, the court must advise the child and his or her parent or 167 guardian that the child has the right to a due process 168 evidentiary hearing before a judge. 169 (3) DUE PROCESS EVIDENTIARY HEARING BEFORE A JUDGE. 170 Notwithstanding any other law, and in all cases, a child charged 171 with a crime or his or her parent or guardian must receive a due 172 process evidentiary hearing after the state attorney files an 173 information in adult court under this section. 174 (a) The judge shall conduct the hearing within 30 days 175 after the request, excluding Saturdays, Sundays, and legal 176 holidays, unless the child or the child’s attorney shows good 177 cause for a delay. The purpose of the hearing is for the court 178 to determine whether it is necessary for the community’s 179 protection that the child be prosecuted in adult court. The 180 judge shall consider all of the following: 181 1. Evaluations and assessments completed by the department. 182 2. The sophistication and maturity of the child, including: 183 a. The effect, if any, of immaturity, impetuosity, or 184 failure to appreciate risks and consequences on the child’s 185 participation in the alleged offense. 186 b. The child’s age, maturity, intellectual capacity, and 187 mental and emotional health at the time of the alleged offense. 188 c. The effect, if any, of characteristics attributable to 189 the child’s youth on his or her judgment. 190 3. The record and previous history of the child, including: 191 a. Previous contacts with the department, the Department of 192 Corrections, the Department of Children and Families, other law 193 enforcement agencies, and the courts. 194 b. Prior periods of probation. 195 c. Prior adjudications that the child committed a 196 delinquent act or violation of law, with greater weight being 197 given if a court previously found that the child committed a 198 delinquent act or violation of law involving violence to 199 persons. 200 d. Prior commitments to institutions of the department, the 201 Department of Corrections, or agencies under contract with 202 either department. 203 e. Any history of trauma, abuse or neglect, foster care 204 placements, failed adoption, fetal alcohol syndrome, exposure to 205 controlled substances at birth, or below-average intellectual 206 functioning. 207 f. Identification of the child as a student requiring 208 exceptional student education or having previously received 209 psychological services. 210 4. The nature of the alleged offense and the child’s 211 participation in it, including: 212 a. Whether the alleged offense is punishable by death or 213 life imprisonment. 214 b. Whether the alleged offense was against persons or 215 property. 216 c. Whether the alleged offense is alleged to have been 217 committed in an aggressive, violent, or premeditated manner. 218 d. The extent of the child’s participation in the alleged 219 offense. 220 e. The effect, if any, of familial pressure or peer 221 pressure on the child’s actions. 222 5. The prospects for adequate protection of the public and 223 the likelihood of reasonable rehabilitation of the child, if the 224 child is found to have committed the alleged offense: 225 a. By the use of procedures, services, and facilities 226 currently available to the juvenile court. 227 b. By the use of procedures, services, and facilities 228 currently available to the adult court, including whether the 229 lowest permissible sentence under the Criminal Punishment Code 230 is a nonstate prison sanction. 231 6. Whether the child could obtain habilitative or 232 rehabilitative services available in the juvenile justice 233 system. 234 7. Whether the child could receive a sentence in juvenile 235 court which would provide adequate safety and protection for the 236 community. 237 8. Whether the child’s best interests would be served by 238 prosecuting the child in juvenile court. 239 (b) The judge may consider any reports that may assist the 240 court, including prior predisposition reports, psychosocial 241 assessments, individual educational plans, developmental 242 assessments, school records, abuse or neglect reports, home 243 studies, protective investigations, and psychological and 244 psychiatric evaluations. The child, the child’s parents or legal 245 guardians, his or her defense counsel, and the state attorney 246 may examine these reports and, at the hearing, question the 247 parties responsible for creating them. 248 (c) The adult court shall retain jurisdiction unless the 249 court finds by a preponderance of the evidence that the factors 250 listed in paragraph (a) support returning the child to juvenile 251 court. 252 (d) The adult court shall render an order that includes 253 specific findings of fact and the reasons for its decision. The 254 prosecution or defense may seek immediate review of the order 255 through interlocutory appeal. The order shall be reviewable on 256 appeal under the Florida Rules of Appellate Procedure. 257 (4)(2)EFFECT OF PROSECUTING CHILDREN AS ADULTSDIRECT258FILE.— 259 (a) Once a child has been transferred for criminal 260 prosecution pursuant to an information and has been found to 261 have committed the presenting offense or a lesser included 262 offense, the child shall be handled thereafter in every respect 263 as if an adult for any subsequent violation of state law, unless 264 the court imposes juvenile sanctions under s. 985.565. 265 (b) When a child is transferred for criminal prosecution as 266 an adult, the court shall immediately transfer and certify to 267 the adult circuit court all felony cases pertaining to the 268 child, for prosecution of the child as an adult, which have not 269 yet resulted in a plea of guilty or nolo contendere or in which 270 a finding of guilt has not been made. If a child is acquitted of 271 all charged offenses or lesser included offenses contained in 272 the original case transferred to adult court, all felony cases 273 that were transferred to adult court as a result of this 274 paragraph shall be subject to the same penalties to which such 275 cases would have been subject before being transferred to adult 276 court. 277 (c) When a child has been transferred for criminal 278 prosecution as an adult and has been found to have committed a 279 violation of state law, the disposition of the case may be made 280 under s. 985.565 and may include the enforcement of any 281 restitution ordered in any juvenile proceeding. 282 (5)(3)CHARGES INCLUDED ON INFORMATION.—An information 283 filed pursuant to this section may include all charges that are 284 based on the same act, criminal episode, or transaction as the 285 primary offenses. 286 Section 4. Subsection (1) of section 985.15, Florida 287 Statutes, is amended to read: 288 985.15 Filing decisions.— 289 (1) The state attorney may in all cases take action 290 independent of the action or lack of action of the juvenile 291 probation officer and shall determine the action that is in the 292 best interest of the public and the child.If the child meets293the criteria requiring prosecution as an adult under s. 985.556,294the state attorney shall request the court to transfer and295certify the child for prosecution as an adult or shall provide296written reasons to the court for not making such a request. In297all other cases,The state attorney may: 298 (a) File a petition for dependency; 299 (b) File a petition under chapter 984; 300 (c) File a petition for delinquency; 301 (d) File a petition for delinquency with a motion to 302 transfer and certify the child for prosecution as an adult; 303 (e) File an information under s. 985.557; 304 (f) Refer the case to a grand jury; 305 (g) Refer the child to a diversionary, pretrial 306 intervention, arbitration, or mediation program, or to some 307 other treatment or care program if such program commitment is 308 voluntarily accepted by the child or the child’s parents or 309 legal guardian; or 310 (h) Decline to file. 311 Section 5. Paragraphs (a) and (b) of subsection (4) of 312 section 985.565, Florida Statutes, are amended to read: 313 985.565 Sentencing powers; procedures; alternatives for 314 juveniles prosecuted as adults.— 315 (4) SENTENCING ALTERNATIVES.— 316 (a) Adult sanctions.— 317 1. Cases prosecuted on indictment.—If the child is found to 318 have committed the offense punishable by death or life 319 imprisonment, the child shall be sentenced as an adult. If the 320 juvenile is not found to have committed the indictable offense 321 but is found to have committed a lesser included offense or any 322 other offense for which he or she was indicted as a part of the 323 criminal episode, the court may sentence as follows: 324 a. As an adult; 325 b. Under chapter 958; or 326 c. As a juvenile under this section. 327 2. Other cases.—If a child who has been transferred for 328 criminal prosecution pursuant to information or waiver of 329 juvenile court jurisdiction is found to have committed a 330 violation of state law or a lesser included offense for which he 331 or she was charged as a part of the criminal episode, the court 332 may sentence as follows: 333 a. As an adult; 334 b. Under chapter 958; or 335 c. As a juvenile under this section. 336 3.Notwithstanding any other provision to the contrary, if337the state attorney is required to file a motion to transfer and338certify the juvenile for prosecution as an adult under s.339985.556(3) and that motion is granted, the court must impose340adult sanctions.3414.Any sentence imposing adult sanctions is presumed 342 appropriate, and the court is not required to set forth specific 343 findings or enumerate the criteria in this subsection as any 344 basis for its decision to impose adult sanctions. 345 4.5.When a child has been transferred for criminal 346 prosecution as an adult and has been found to have committed a 347 violation of state law, the disposition of the case may include 348 the enforcement of any restitution ordered in any juvenile 349 proceeding. 350 (b) Juvenile sanctions.—For juveniles transferred to adult 351 courtbut who do not qualify for such transfer under s.352985.556(3), the court may impose juvenile sanctions under this 353 paragraph. If juvenile sentences are imposed, the court shall, 354 under this paragraph, adjudge the child to have committed a 355 delinquent act. Adjudication of delinquency may not be deemed a 356 conviction, nor shall it operate to impose any of the civil 357 disabilities ordinarily resulting from a conviction. The court 358 shall impose an adult sanction or a juvenile sanction and may 359 not sentence the child to a combination of adult and juvenile 360 punishments. An adult sanction or a juvenile sanction may 361 include enforcement of an order of restitution or probation 362 previously ordered in any juvenile proceeding. However, if the 363 court imposes a juvenile sanction and the department determines 364 that the sanction is unsuitable for the child, the department 365 shall return custody of the child to the sentencing court for 366 further proceedings, including the imposition of adult 367 sanctions. Upon adjudicating a child delinquent under subsection 368 (1), the court may: 369 1. Place the child in a probation program under the 370 supervision of the department for an indeterminate period of 371 time until the child reaches the age of 19 years or sooner if 372 discharged by order of the court. 373 2. Commit the child to the department for treatment in an 374 appropriate program for children for an indeterminate period of 375 time until the child is 21 or sooner if discharged by the 376 department. The department shall notify the court of its intent 377 to discharge no later than 14 days before discharge. Failure of 378 the court to timely respond to the department’s notice shall be 379 considered approval for discharge. 380 3. Order disposition under ss. 985.435, 985.437, 985.439, 381 985.441, 985.45, and 985.455 as an alternative to youthful 382 offender or adult sentencing if the court determines not to 383 impose youthful offender or adult sanctions. 384 385 It is the intent of the Legislature that the criteria and 386 guidelines in this subsection are mandatory and that a 387 determination of disposition under this subsection is subject to 388 the right of the child to appellate review under s. 985.534. 389 Section 6. Subsection (54) of section 985.03, Florida 390 Statutes, is amended to read: 391 985.03 Definitions.—As used in this chapter, the term: 392 (54) “Waiver hearing” means a hearing provided for under s. 393 985.556(3)s. 985.556(4). 394 Section 7. This act shall take effect July 1, 2023.