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 in
   80  subsection (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 the
   86  child has been previously adjudicated delinquent for an act
   87  classified as a felony, which adjudication was for the
   88  commission of, attempt to commit, or conspiracy to commit
   89  murder, sexual battery, armed or strong-armed robbery,
   90  carjacking, home-invasion robbery, aggravated battery,
   91  aggravated assault, or burglary with an assault or battery, and
   92  the child is currently charged with a second or subsequent
   93  violent crime against a person; or
   94         (b) If the child was 14 years of age or older at the time
   95  of commission of a fourth or subsequent alleged felony offense
   96  and the child was previously adjudicated delinquent or had
   97  adjudication withheld for or was found to have committed, or to
   98  have attempted or conspired to commit, three offenses that are
   99  felony offenses if committed by an adult, and one or more of
  100  such felony offenses involved the use or possession of a firearm
  101  or violence against a person;
  102  
  103  the state attorney shall request the court to transfer and
  104  certify the child for prosecution as an adult or shall provide
  105  written reasons to the court for not making such request, or
  106  proceed under s. 985.557(1). Upon the state attorney’s request,
  107  the court shall either enter an order transferring the case and
  108  certifying the case for trial as if the child were an adult or
  109  provide 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 adults Direct filing of an
  113  information; discretionary criteria.—
  114         (1) DISCRETIONARY PROSECUTION OF CHILDREN AS ADULTS DIRECT
  115  FILE.—
  116         (a) With respect to any child who was 14 or 15 years of age
  117  at the time the alleged offense was committed, the state
  118  attorney may file an information when in the state attorney’s
  119  judgment and discretion the public interest requires that adult
  120  sanctions be considered or imposed and when the offense charged
  121  is for the commission of, attempt to commit, or conspiracy to
  122  commit:
  123         1. Arson;
  124         2. Sexual battery;
  125         3. Robbery;
  126         4. Kidnapping;
  127         5. Aggravated child abuse;
  128         6. Aggravated assault;
  129         7. Aggravated stalking;
  130         8. Murder;
  131         9. Manslaughter;
  132         10. Unlawful throwing, placing, or discharging of a
  133  destructive device or bomb;
  134         11. Armed burglary in violation of s. 810.02(2)(b) or
  135  specified burglary of a dwelling or structure in violation of s.
  136  810.02(2)(c), or burglary with an assault or battery in
  137  violation of s. 810.02(2)(a);
  138         12. Aggravated battery;
  139         13. Any lewd or lascivious offense committed upon or in the
  140  presence of a person less than 16 years of age;
  141         14. Carrying, displaying, using, threatening, or attempting
  142  to use a weapon or firearm during the commission of a felony;
  143         15. Grand theft in violation of s. 812.014(2)(a);
  144         16. Possessing or discharging any weapon or firearm on
  145  school property in violation of s. 790.115;
  146         17. Home invasion robbery;
  147         18. Carjacking; or
  148         19. Grand theft of a motor vehicle in violation of s.
  149  812.014(2)(c)6. or grand theft of a motor vehicle valued at
  150  $20,000 or more in violation of s. 812.014(2)(b) if the child
  151  has a previous adjudication for grand theft of a motor vehicle
  152  in 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 when in the state attorney’s judgment and discretion
  157  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 adjudications or
  161  adjudications withheld for delinquent acts, one of which
  162  involved an offense classified as a forcible felony as defined
  163  in s. 776.08 under 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 ADULTS DIRECT
  258  FILE.—
  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 meets
  293  the criteria requiring prosecution as an adult under s. 985.556,
  294  the state attorney shall request the court to transfer and
  295  certify the child for prosecution as an adult or shall provide
  296  written reasons to the court for not making such a request. In
  297  all 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, if
  337  the state attorney is required to file a motion to transfer and
  338  certify the juvenile for prosecution as an adult under s.
  339  985.556(3) and that motion is granted, the court must impose
  340  adult sanctions.
  341         4. 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  court but who do not qualify for such transfer under s.
  352  985.556(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.