Bill Text: FL S0876 | 2019 | Regular Session | Comm Sub


Bill Title: Direct Filing of an Information

Spectrum: Slight Partisan Bill (Democrat 2-1)

Status: (Failed) 2019-05-03 - Died in Appropriations [S0876 Detail]

Download: Florida-2019-S0876-Comm_Sub.html
       Florida Senate - 2019                              CS for SB 876
       
       
        
       By the Committee on Criminal Justice; and Senator Powell
       
       
       
       
       
       591-04015A-19                                          2019876c1
    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 hearing to
    9         determine if the child should remain in adult court;
   10         amending s. 985.557, F.S.; deleting references to the
   11         state attorney’s discretion to direct file a juvenile;
   12         revising discretionary direct file criteria; deleting
   13         provisions for mandatory direct file; providing for an
   14         opportunity for a hearing to reverse a direct file;
   15         amending s. 985.565, F.S.; conforming provisions to
   16         changes made by the act; reenacting ss. 985.15(1),
   17         985.26(2)(c), and 985.556(3), F.S., relating to filing
   18         decisions, length of detention, and involuntary
   19         mandatory waiver, respectively, to incorporate the
   20         amendment made to s. 985.557, F.S., in references
   21         thereto; providing an effective date.
   22          
   23  Be It Enacted by the Legislature of the State of Florida:
   24  
   25         Section 1. Subsection (5) of section 985.265, Florida
   26  Statutes, is amended to read
   27         985.265 Detention transfer and release; education; adult
   28  jails.—
   29         (5) The court shall order the delivery of a child to a jail
   30  or other facility intended or used for the detention of adults:
   31         (a) When the child has been transferred or indicted for
   32  criminal prosecution as an adult under part X, except that:
   33         1. The court may not order or allow a child alleged to have
   34  committed a misdemeanor who is being transferred for criminal
   35  prosecution pursuant to either s. 985.556 or s. 985.557 to be
   36  detained or held in a jail or other facility intended or used
   37  for the detention of adults; however, such child may be held
   38  temporarily in a detention facility; or
   39         2. A child who has been transferred for criminal
   40  prosecution as an adult pursuant to s. 985.557 shall not be held
   41  in a jail or other facility intended or used for the detention
   42  of adults prior to a court finding as a result of a hearing
   43  provided for in s. 985.557(2) that the child should be
   44  prosecuted as an adult; or
   45         (b) When a child taken into custody in this state is wanted
   46  by another jurisdiction for prosecution as an adult.
   47  
   48  The child shall be housed separately from adult inmates to
   49  prohibit a child from having regular contact with incarcerated
   50  adults, including trusties. “Regular contact” means sight and
   51  sound contact. Separation of children from adults shall permit
   52  no more than haphazard or accidental contact. The receiving jail
   53  or other facility shall contain a separate section for children
   54  and shall have an adequate staff to supervise and monitor the
   55  child’s activities at all times. Supervision and monitoring of
   56  children includes physical observation and documented checks by
   57  jail or receiving facility supervisory personnel at intervals
   58  not to exceed 10 minutes. This subsection does not prohibit
   59  placing two or more children in the same cell. Under no
   60  circumstances shall a child be placed in the same cell with an
   61  adult.
   62         Section 2. Subsection (1) and present subsection (2) of
   63  section 985.557, Florida Statutes, are amended, and a new
   64  subsection (2) is added to that section, to read:
   65         985.557 Direct filing of an information; discretionary and
   66  mandatory criteria.—
   67         (1) DISCRETIONARY DIRECT FILE.—
   68         (a) With respect to any child who was 14 or 15 years of age
   69  at the time the alleged offense was committed, the state
   70  attorney may file an information when in the state attorney’s
   71  judgment and discretion the public interest requires that adult
   72  sanctions be considered or imposed and when the offense charged
   73  is for the commission of, or attempt to commit any of the
   74  following , or conspiracy to commit:
   75         1. Arson.;
   76         2. Sexual battery.;
   77         3. Robbery.;
   78         4. Kidnapping.;
   79         5. Aggravated child abuse.;
   80         6. Aggravated assault.;
   81         7. Aggravated stalking.;
   82         8. Murder.;
   83         9. Manslaughter.;
   84         10. Unlawful throwing, placing, or discharging of a
   85  destructive device or bomb.;
   86         11. Armed burglary in violation of s. 810.02(2)(b) or
   87  specified burglary of a dwelling or structure in violation of s.
   88  810.02(2)(c), or burglary with an assault or battery in
   89  violation of s. 810.02(2)(a).;
   90         12. Aggravated battery.;
   91         13. Any lewd or lascivious offense committed upon or in the
   92  presence of a person less than 16 years of age;
   93         14. Carrying, displaying, using, threatening, or attempting
   94  to use a weapon or firearm during the commission of a felony.;
   95         15. Grand theft in violation of s. 812.014(2)(a).;
   96         16. Possessing or discharging any weapon or firearm on
   97  school property in violation of s. 790.115.;
   98         17. Home invasion robbery.;
   99         18. Carjacking.; or
  100         19. Grand theft of a motor vehicle in violation of s.
  101  812.014(2)(c)6. or grand theft of a motor vehicle valued at
  102  $20,000 or more in violation of s. 812.014(2)(b) if the child
  103  has a previous adjudication for grand theft of a motor vehicle
  104  in violation of s. 812.014(2)(c)6. or s. 812.014(2)(b).
  105         (b) With respect to any child who was 16 or 17 years of age
  106  at the time the alleged offense was committed, the state
  107  attorney may file an information when in the state attorney’s
  108  judgment and discretion the public interest requires that adult
  109  sanctions be considered or imposed. However, the state attorney
  110  may not file an information on a child charged with a
  111  misdemeanor, unless the child has had at least two previous
  112  adjudications or adjudications withheld for delinquent acts, one
  113  of which involved an offense classified as a felony under state
  114  law.
  115         (2) DUE PROCESS HEARING BEFORE A JUDGE.—Notwithstanding any
  116  other law, and in all cases, any child charged with a crime
  117  shall have an evidentiary hearing, after the state attorney’s
  118  filing of an information in adult court under this section.
  119         (a) The judge shall conduct the hearing within 30 days,
  120  excluding Saturdays, Sundays, and legal holidays, unless good
  121  cause is shown for a delay by the child or the child’s attorney.
  122  The purpose of the hearing is for the court to determine whether
  123  it is necessary for protection of the community that the child
  124  is prosecuted in adult court. The judge shall consider all of
  125  the following:
  126         1.Evaluations and assessments completed by the department.
  127         2.The sophistication and maturity of the child, including:
  128         a.The effect, if any, of immaturity, impetuosity, or
  129  failure to appreciate risks and consequences on the child’s
  130  participation in the alleged offense.
  131         b.The child’s age, maturity, intellectual capacity, and
  132  mental and emotional health at the time of the alleged offense.
  133         c.The effect, if any, of characteristics attributable to
  134  the child’s youth on the child’s judgment.
  135         3.The record and previous history of the child, including:
  136         a.Previous contacts with the department, the Department of
  137  Corrections, the Department of Children and Families, other law
  138  enforcement agencies, and the courts.
  139         b.Prior periods of probation.
  140         c.Prior adjudications that the child committed a
  141  delinquent act or violation of law, with greater weight being
  142  given if the child has previously been found by a court to have
  143  committed a delinquent act or violation of law involving
  144  violence to persons.
  145         d.Prior commitments to institutions of the department, the
  146  Department of Corrections, or agencies under contract with
  147  either department.
  148         e.History of trauma, abuse or neglect, foster care
  149  placements, failed adoption, fetal alcohol syndrome, exposure to
  150  controlled substances at birth, and below-average intellectual
  151  functioning.
  152         f.Identification of the child as a student requiring
  153  exceptional student education or having previously received
  154  psychological services.
  155         4.The nature of the alleged offense and the child’s
  156  participation, including:
  157         a.Whether the alleged offense is punishable by death or
  158  life imprisonment.
  159         b.Whether the alleged offense was against persons or
  160  property.
  161         c.Whether the alleged offense is alleged to have been
  162  committed in an aggressive, violent, or premeditated manner.
  163         d.The extent of the child’s participation in the alleged
  164  offense.
  165         e.The effect, if any, of familial pressure or peer
  166  pressure on the child’s actions.
  167         5.The prospects for adequate protection of the public and
  168  the likelihood of reasonable rehabilitation of the child, if the
  169  child is found to have committed the alleged offense:
  170         a.By the use of procedures, services, and facilities
  171  currently available to the juvenile court.
  172         b.By the use of procedures, services, and facilities
  173  currently available to the adult court, including whether the
  174  lowest permissible sentence under the Criminal Punishment Code
  175  is a nonstate prison sanction.
  176         6.Whether the child could obtain habilitative or
  177  rehabilitative services available in the juvenile justice
  178  system.
  179         7.Whether the child could receive a sentence in juvenile
  180  court that would provide adequate safety and protection for the
  181  community.
  182         8.Whether the child’s best interests would be served by
  183  prosecuting the child in juvenile court.
  184         (b)The judge may consider any reports that may assist the
  185  court, including prior pre-disposition reports, psycho-social
  186  assessments, individualized educational programs (IEPs),
  187  developmental assessments, school records, abuse or neglect
  188  reports, home studies, protective investigations, and
  189  psychological and psychiatric evaluations. The child, the
  190  child’s parents or legal guardians, defense counsel, and the
  191  state attorney may examine these reports and question the
  192  parties responsible for creating them at the hearing.
  193         (c)The adult court shall retain jurisdiction unless the
  194  court finds by a preponderance of the evidence that the factors
  195  listed in paragraph (a) support returning the child to juvenile
  196  court.
  197         (d)The adult court shall render an order including
  198  specific findings of fact and the reasons for its decision. The
  199  prosecution and defense may seek immediate review of the order
  200  through interlocutory appeal. The order shall be reviewable on
  201  appeal under the Florida Rules of Appellate Procedure.
  202         (2) MANDATORY DIRECT FILE.—
  203         (a) With respect to any child who was 16 or 17 years of age
  204  at the time the alleged offense was committed, the state
  205  attorney shall file an information if the child has been
  206  previously adjudicated delinquent for an act classified as a
  207  felony, which adjudication was for the commission of, attempt to
  208  commit, or conspiracy to commit murder, sexual battery, armed or
  209  strong-armed robbery, carjacking, home-invasion robbery,
  210  aggravated battery, or aggravated assault, and the child is
  211  currently charged with a second or subsequent violent crime
  212  against a person.
  213         (b) With respect to any child 16 or 17 years of age at the
  214  time an offense classified as a forcible felony, as defined in
  215  s. 776.08, was committed, the state attorney shall file an
  216  information if the child has previously been adjudicated
  217  delinquent or had adjudication withheld for three acts
  218  classified as felonies each of which occurred at least 45 days
  219  apart from each other. This paragraph does not apply when the
  220  state attorney has good cause to believe that exceptional
  221  circumstances exist which preclude the just prosecution of the
  222  juvenile in adult court.
  223         (c) The state attorney must file an information if a child,
  224  regardless of the child’s age at the time the alleged offense
  225  was committed, is alleged to have committed an act that would be
  226  a violation of law if the child were an adult, that involves
  227  stealing a motor vehicle, including, but not limited to, a
  228  violation of s. 812.133, relating to carjacking, or s.
  229  812.014(2)(c)6., relating to grand theft of a motor vehicle, and
  230  while the child was in possession of the stolen motor vehicle
  231  the child caused serious bodily injury to or the death of a
  232  person who was not involved in the underlying offense. For
  233  purposes of this section, the driver and all willing passengers
  234  in the stolen motor vehicle at the time such serious bodily
  235  injury or death is inflicted shall also be subject to mandatory
  236  transfer to adult court. “Stolen motor vehicle,” for the
  237  purposes of this section, means a motor vehicle that has been
  238  the subject of any criminal wrongful taking. For purposes of
  239  this section, “willing passengers” means all willing passengers
  240  who have participated in the underlying offense.
  241         (d)1. With respect to any child who was 16 or 17 years of
  242  age at the time the alleged offense was committed, the state
  243  attorney shall file an information if the child has been charged
  244  with committing or attempting to commit an offense listed in s.
  245  775.087(2)(a)1.a.-p., and, during the commission of or attempt
  246  to commit the offense, the child:
  247         a. Actually possessed a firearm or destructive device, as
  248  those terms are defined in s. 790.001.
  249         b. Discharged a firearm or destructive device, as described
  250  in s. 775.087(2)(a)2.
  251         c. Discharged a firearm or destructive device, as described
  252  in s. 775.087(2)(a)3., and, as a result of the discharge, death
  253  or great bodily harm was inflicted upon any person.
  254         2. Upon transfer, any child who is:
  255         a. Charged under sub-subparagraph 1.a. and who has been
  256  previously adjudicated or had adjudication withheld for a
  257  forcible felony offense or any offense involving a firearm, or
  258  who has been previously placed in a residential commitment
  259  program, shall be subject to sentencing under s. 775.087(2)(a),
  260  notwithstanding s. 985.565.
  261         b. Charged under sub-subparagraph 1.b. or sub-subparagraph
  262  1.c., shall be subject to sentencing under s. 775.087(2)(a),
  263  notwithstanding s. 985.565.
  264         3. Upon transfer, any child who is charged under this
  265  paragraph, but who does not meet the requirements specified in
  266  subparagraph 2., shall be sentenced under s. 985.565; however,
  267  if the court imposes a juvenile sanction, the court must commit
  268  the child to a high-risk or maximum-risk juvenile facility.
  269         4. This paragraph shall not apply if the state attorney has
  270  good cause to believe that exceptional circumstances exist that
  271  preclude the just prosecution of the child in adult court.
  272         5. The Department of Corrections shall make every
  273  reasonable effort to ensure that any child 16 or 17 years of age
  274  who is convicted and sentenced under this paragraph be
  275  completely separated such that there is no physical contact with
  276  adult offenders in the facility, to the extent that it is
  277  consistent with chapter 958.
  278         Section 3. Paragraphs (a) and (b) of subsection (4) of
  279  section 985.565, Florida Statutes, are amended to read
  280         985.565 Sentencing powers; procedures; alternatives for
  281  juveniles prosecuted as adults.—
  282         (4) SENTENCING ALTERNATIVES.—
  283         (a) Adult sanctions.—
  284         1. Cases prosecuted on indictment.—If the child is found to
  285  have committed the offense punishable by death or life
  286  imprisonment, the child shall be sentenced as an adult. If the
  287  juvenile is not found to have committed the indictable offense
  288  but is found to have committed a lesser included offense or any
  289  other offense for which he or she was indicted as a part of the
  290  criminal episode, the court may sentence as follows:
  291         a. As an adult;
  292         b. Under chapter 958; or
  293         c. As a juvenile under this section.
  294         2. Other cases.—If a child who has been transferred for
  295  criminal prosecution pursuant to information or waiver of
  296  juvenile court jurisdiction is found to have committed a
  297  violation of state law or a lesser included offense for which he
  298  or she was charged as a part of the criminal episode, the court
  299  may sentence as follows:
  300         a. As an adult;
  301         b. Under chapter 958; or
  302         c. As a juvenile under this section.
  303         3. Notwithstanding any other provision to the contrary, if
  304  the state attorney is required to file a motion to transfer and
  305  certify the juvenile for prosecution as an adult under s.
  306  985.556(3) and that motion is granted, or if the state attorney
  307  is required to file an information under s. 985.557(2)(a) or
  308  (b), the court must impose adult sanctions.
  309         4. Any sentence imposing adult sanctions is presumed
  310  appropriate, and the court is not required to set forth specific
  311  findings or enumerate the criteria in this subsection as any
  312  basis for its decision to impose adult sanctions.
  313         5. When a child has been transferred for criminal
  314  prosecution as an adult and has been found to have committed a
  315  violation of state law, the disposition of the case may include
  316  the enforcement of any restitution ordered in any juvenile
  317  proceeding.
  318         (b) Juvenile sanctions.—For juveniles transferred to adult
  319  court but who do not qualify for such transfer under s.
  320  985.556(3) or s. 985.557(2)(a) or (b), the court may impose
  321  juvenile sanctions under this paragraph. If juvenile sentences
  322  are imposed, the court shall, under this paragraph, adjudge the
  323  child to have committed a delinquent act. Adjudication of
  324  delinquency shall not be deemed a conviction, nor shall it
  325  operate to impose any of the civil disabilities ordinarily
  326  resulting from a conviction. The court shall impose an adult
  327  sanction or a juvenile sanction and may not sentence the child
  328  to a combination of adult and juvenile punishments. An adult
  329  sanction or a juvenile sanction may include enforcement of an
  330  order of restitution or probation previously ordered in any
  331  juvenile proceeding. However, if the court imposes a juvenile
  332  sanction and the department determines that the sanction is
  333  unsuitable for the child, the department shall return custody of
  334  the child to the sentencing court for further proceedings,
  335  including the imposition of adult sanctions. Upon adjudicating a
  336  child delinquent under subsection (1), the court may:
  337         1. Place the child in a probation program under the
  338  supervision of the department for an indeterminate period of
  339  time until the child reaches the age of 19 years or sooner if
  340  discharged by order of the court.
  341         2. Commit the child to the department for treatment in an
  342  appropriate program for children for an indeterminate period of
  343  time until the child is 21 or sooner if discharged by the
  344  department. The department shall notify the court of its intent
  345  to discharge no later than 14 days prior to discharge. Failure
  346  of the court to timely respond to the department’s notice shall
  347  be considered approval for discharge.
  348         3. Order disposition under ss. 985.435, 985.437, 985.439,
  349  985.441, 985.45, and 985.455 as an alternative to youthful
  350  offender or adult sentencing if the court determines not to
  351  impose youthful offender or adult sanctions.
  352  
  353  It is the intent of the Legislature that the criteria and
  354  guidelines in this subsection are mandatory and that a
  355  determination of disposition under this subsection is subject to
  356  the right of the child to appellate review under s. 985.534.
  357         Section 4. For the purpose of incorporating the amendment
  358  made by this act to section 985.557, Florida Statutes, in a
  359  reference thereto, subsection (1) of section 985.15, Florida
  360  Statutes, is reenacted to read:
  361         985.15 Filing decisions.—
  362         (1) The state attorney may in all cases take action
  363  independent of the action or lack of action of the juvenile
  364  probation officer and shall determine the action that is in the
  365  best interest of the public and the child. If the child meets
  366  the criteria requiring prosecution as an adult under s. 985.556,
  367  the state attorney shall request the court to transfer and
  368  certify the child for prosecution as an adult or shall provide
  369  written reasons to the court for not making such a request. In
  370  all other cases, the state attorney may:
  371         (a) File a petition for dependency;
  372         (b) File a petition under chapter 984;
  373         (c) File a petition for delinquency;
  374         (d) File a petition for delinquency with a motion to
  375  transfer and certify the child for prosecution as an adult;
  376         (e) File an information under s. 985.557;
  377         (f) Refer the case to a grand jury;
  378         (g) Refer the child to a diversionary, pretrial
  379  intervention, arbitration, or mediation program, or to some
  380  other treatment or care program if such program commitment is
  381  voluntarily accepted by the child or the child’s parents or
  382  legal guardian; or
  383         (h) Decline to file.
  384         Section 5. For the purpose of incorporating the amendment
  385  made by this act to section 985.557, Florida Statutes, in a
  386  reference thereto, paragraph (c) of subsection (2) of section
  387  985.26, Florida Statutes, is reenacted to read:
  388         985.26 Length of detention.—
  389         (2)
  390         (c) A prolific juvenile offender under s. 985.255(1)(j)
  391  shall be placed on nonsecure detention care with electronic
  392  monitoring or in secure detention care under a special detention
  393  order until disposition. If secure detention care is ordered by
  394  the court, it must be authorized under this part and may not
  395  exceed:
  396         1. Twenty-one days unless an adjudicatory hearing for the
  397  case has been commenced in good faith by the court or the period
  398  is extended by the court pursuant to paragraph (b); or
  399         2. Fifteen days after the entry of an order of
  400  adjudication.
  401  
  402  As used in this paragraph, the term “disposition” means a
  403  declination to file under s. 985.15(1)(h), the entry of nolle
  404  prosequi for the charges, the filing of an indictment under s.
  405  985.56 or an information under s. 985.557, a dismissal of the
  406  case, or an order of final disposition by the court.
  407         Section 6. For the purpose of incorporating the amendment
  408  made by this act to section 985.557, Florida Statutes, in a
  409  reference thereto, subsection (3) of section 985.556, Florida
  410  Statutes, is reenacted to read:
  411         985.556 Waiver of juvenile court jurisdiction; hearing.—
  412         (3) INVOLUNTARY MANDATORY WAIVER.—
  413         (a) If the child was 14 years of age or older, and if the
  414  child has been previously adjudicated delinquent for an act
  415  classified as a felony, which adjudication was for the
  416  commission of, attempt to commit, or conspiracy to commit
  417  murder, sexual battery, armed or strong-armed robbery,
  418  carjacking, home-invasion robbery, aggravated battery,
  419  aggravated assault, or burglary with an assault or battery, and
  420  the child is currently charged with a second or subsequent
  421  violent crime against a person; or
  422         (b) If the child was 14 years of age or older at the time
  423  of commission of a fourth or subsequent alleged felony offense
  424  and the child was previously adjudicated delinquent or had
  425  adjudication withheld for or was found to have committed, or to
  426  have attempted or conspired to commit, three offenses that are
  427  felony offenses if committed by an adult, and one or more of
  428  such felony offenses involved the use or possession of a firearm
  429  or violence against a person;
  430  
  431  the state attorney shall request the court to transfer and
  432  certify the child for prosecution as an adult or shall provide
  433  written reasons to the court for not making such request, or
  434  proceed under s. 985.557(1). Upon the state attorney’s request,
  435  the court shall either enter an order transferring the case and
  436  certifying the case for trial as if the child were an adult or
  437  provide written reasons for not issuing such an order.
  438         Section 7. This act shall take effect July 1, 2019.

feedback