CRIMINAL PROCEDURE RULES COMMITTEE AGENDA FRIDAY, JUNE 28, 2019 2:00 P.M.–5:00 P.M. (E.T.)
ESTATE BALLROOM I BOCA RESORT 501 E. CAMINO REAL BOCA RATON, FL 33432
CONFERENCE CALL DIAL-IN NUMBERS (888) 376-5050; PARTICIPANT PIN 7412589632#
I. Call to Order–Chair Sheila Loizos
Welcome members and guests and identify new members and telephone attendees.
II. Chair’s report–Sheila Loizos
Housekeeping:
1. Circulate attendance sheet. Please do not forget to sign it before you leave for the day!
2. Approval of minutes from January 18, 2019, meeting.
The minutes begin on page 6. All members are expected to have reviewed the minutes prior to meeting. Unless there is an objection, the minutes will be approved by acclamation.
III. Old Business
LIAISON REPORTS
1. Rules of Judicial Administration Committee Liaison Hon. Jon Morgan
2. Rules of Appellate Procedure Committee Liaison Hon. T. Kent Wetherell, II
June 28, 2019 Criminal Procedure Rules Committee 1 3. Circuit Court Judges Liaison Hon. Angela Dempsey
4. County Court Judges Liaison Hon. Stephen Everett
5. FACDL Liaison Jude Faccidomo
6. Florida Public Defender Association Liaison Jane McNeill
7. Florida Prosecuting Attorney Association Liaison Adrienne Ellis
8. Florida Supreme Court Criminal Court Steering Committee Liaison Diana Bock
IV. Standing Subcommittee Reports
1. Subcommittee I–Rules 3.010-3.180. The Subcommittee I report begins on page 14.
Chair: Honorable Angela Dempsey
19-04-I: The Supreme Court asked all committees “to propose any rule amendments necessary to ensure that service of documents that are not filed with the court, like service of documents that are filed, is governed by rule 2.516.” No one could think of any documents that would not be covered by Rule 3.030 (Service and Filings of Pleadings and Documents).
19-05-I: Mr. Getty suggested that a notice to appear (“NTA”) should not be a charging document. He explained that if an NTA is issued and the case is nolle prosse then the arrest stands, but if a warrant is issued and the State declines to prosecute, then there is no arrest on your record. He proposes the same change to criminal traffic cases. The Subcommittee decided, unanimously, that no amendments are necessary in light of State v Critzer, 381 So. 2d 301 (Fla. 5th 1980).
June 28, 2019 Criminal Procedure Rules Committee 2 2. Subcommittee II–Rules 3.190–3.219. The Subcommittee II report begins on page 48.
Chair: Hunter Chamberlin
19-06-II: In Schofield v. Judd, 44 Fla. L. Weekly D850, the Second District Court of Appeal stated that “[i]f an incompetent defendant cannot be restored to competency in the reasonably foreseeable future, the State can either institute a civil commitment proceeding or it can release the defendant. It us an either-or proposition.” As this conflicts with Rule 3.212 (Competence to Proceed: Hearing and Disposition), the Subcommittee suggest amendments to Rule 3.212. The Subcommittee recommend this rule amendment be submitted to the Court on an “out-of-cycle” basis pursuant to Florida Rule of Judicial Administration 2.140(e)(2).
19-08-II: Judge Lawrence Mirman suggested several amendments to Rule 3.210 (Incompetence to Proceed: Procedure for Railing the Issue). The Subcommittee members agreed that if the rules are followed, it works. The subcommittee recommends no amendment.
18-14-II: Work with Juvenile Court Rules Committee to create consistent speedy trial rules. In its opinion in In Re: Amendments to the Florida Rule of Juvenile Procedure—2019 Regular-Cycle Report, 258 So. 3d 1254 (Fla. 2018), the Court stated “[n]ext, we decline to adopt, at this time, the proposed amendments to rule 8.090(m)(3) that would establish the single 15-day speedy-trial recapture window suggested by Justice Pariente in her concurring opinion in State v. S.A., 133 So. 3d 506, 509-10 (Fla. 2014) (Pariente J., concurring). Instead, we direct the JCR Committee to work with the CrimPR Committee to coordinate amendments to the juvenile and criminal speedy-trial rules, in order to ensure continued consistency in the time frames in those rules. Id. at 510 (recognizing that the Court “has interpreted the nearly identical language of the juvenile and adult [speedy- trial] rules consistently”).” The Subcommittee determined that no amendment was needed to create one 15-day timeframe as opposed to the 5-day and 10-day periods currently in use.
3. Subcommittee III–Rules 3.220-3.240. The Subcommittee III report begins on page 131.
Chair: Robert Scavone
June 28, 2019 Criminal Procedure Rules Committee 3 19-07-III: Ira Karmelin suggested that Rule 3.220 be amended to require the State to provide the defendant with the court liaison’s designated e-mail address and the law enforcement officer’s departmental e-mail address. The Subcommittee approved an amendment to Rule 3.220(h)(5) to have the prosecuting attorney send the designated e-mail address or physical address used for service of notice of to the defendant with discovery.
18-10-III: Should Rule 3.220 (Discovery) be amended to address defense requests for investigative subpoenas, whether the defendant is indigent or represented by private counsel, the State is given the tactical advantage of not having to reveal its strategies or intentions due to a statutory grant of investigative subpoena power, applicable pre- as well as post-indictment, under section 27.04, Florida Statutes. The Subcommittee would like feedback from the full Committee as to whether ex par subpoena duces tecum is substantive in nature or procedural? Do the procedure rules “kick in” upon arrest or upon the filing of charges?
4. Subcommittee IV–Rules 3.250-3.570. No current referrals.
Chair: Jude Faccidomo
5. Subcommittee V–Rules 3.580-3.790. The Subcommittee V report begins on page 160.
Chair: Richard Mantei
19-02-V: The Office of the Public Defender for the Fifteenth Judicial Circuit suggested amendments to Rule 3.720 (Sentencing Hearing) to require the court to state on the record its reasons for selecting a particular sentence. The Subcommittee voted to approve an amended provision that excludes misdemeanor cases and negotiated plea agreements.
6. Subcommittee VI–Rules 3.800-End. The Subcommittee VI report begins on page 188.
Chair: Roseanne Eckert
19-09-VI: Dr. Andre LaVon Grant asked for amendments to Rule 3.850, similar to those in Indiana, that would require a court to set a hearing or rule on a motion within 30 days. The non-rule remedy is filing a writ of mandamus. The Subcommittee members are seeking information across the state to determine if
June 28, 2019 Criminal Procedure Rules Committee 4 there are similar tracking systems being used throughout the circuits and the DCAs. It was noted that any amendments would have to conform with Florida Rules of Judicial Administration 2.215 (Trial Court Administration) and 2.250 (Time Standards for Trial and Appellate Courts and Reporting Requirements) and may need to be sent to RJA for consideration.
7. Subcommittee VII–Misc./Ad Hoc. No current referrals.
Chair: Patrice Behnstedt
8. Oversight/IOP Subcommittee. The IOP Subcommittee reports begins on page 195.
Chair: Sheila Loizos
19-03-IOP: Should the Internal Operating Procedures be amended to prohibit attendance by phone? The Subcommittee was tied on whether to prohibit phone attendance, so the motion failed.
9. Fast Track Subcommittee. The Fast Track Subcommittee report begins on page 199.
Chair: Sheila Loizos
17-07-VI: Are conforming amendments to Rule 3.116 needed in light of 2019-71?
19-10-FT: Should the Florida Rules of Criminal Procedure be amended to address HB 7125 or SB 168? The Subcommittee determined rule amendments are not needed at this time to address 2019 legislation.
V. NEW BUSINESS
1.
VI. ADJOURNMENT
Upcoming Meetings: The Fall Meetings will be October 16-19, 2019, at the Tampa Airport Marriott. The Winter Meetings will be February 5-8, 2020, at the Hyatt Regency Orlando. The Annual Convention will be June 17- 20, 2020, at the Hilton Orlando Bonnet Creek.
June 28, 2019 Criminal Procedure Rules Committee 5 CRIMINAL PROCEDURE RULES COMMITTEE MINUTES January 18, 2019
ATTENDANCE
Present: Sheila Ann Loizos (Chair); Hon. Wendy Williams Berger (Vice Chair) (by phone); Jane Allie McNeill (Vice Chair); Berdene B. Beckles (by phone); Patrice Faith Behnstedt; Hunter Harris Chamberlin (by phone); Hon. Angela Cote Dempsey; Roseanne Eckert; Adrienne Elexis Ellis (by phone); Hon. Stephen S. Everett (by phone); Jude Michael Faccidomo (by phone); Carlton Duke Fagan, Jr; Nicole Valdes Hardin (by phone); Sarah R. Hatch; Hon. Richard L. Hersch; Robert D. Holborn, II; Richard W. Mantei (by phone); Sam N. Masters (BOG Liaison); Michael J. Rachel (by phone); Hon. Nushin G. Sayfie; Robert Scavone, Jr.; James Frederick Stewart; Jeffrey David Swartz (by phone); Brian Lee Tannebaum (by phone); David Candido Thompson; Varinia Van Ness; Hon. T. Kent Wetherell, II; Stephen Mathew Whyte, Clerk Representative
Liaisons: Andrew Stanton (ACRC Liaison) and Heather Savage Telfer (Bar Liaison)
Guests: Jim Ash, Reporter, The Bar News
Excused: Danielle A. Sheriff (Vice Chair); Jason Edward Bloch; Caitlin Rose Mawn; Hon. Deborah M. Sisco
Absent:
Speakers: Michelle Suskauer (Bar President) spoke at the beginning of the meeting and thanked all the members for their hard work and noted that the criminal rules committee is one of the most popular, and thus difficult, rules committees to be selected for. President Suskauer gave a summary about the October 2018 criminal justice summit and criminal justice and stated that it was a very productive meeting that brought together prosecutors, defense attorneys and judges and it was realized by all that they have more in common than differences. It was noted that they will move forward with a smaller steering committee and that she would like someone from the criminal rules committee to be on the steering committee to help focus on the important issues. The President also discussed the meeting of the chairs of the rules committee and how they are going to be trying to stream line and improve the rule making process. Finally, the President asked for all the members to try to think outside of the box and come up with some good, creative ideas to help improve the rule making process.
I. CALL TO ORDER The meeting was called to order by Sheila Ann Loizos, Chair of the Criminal Rules Procedure Committee.
June 28, 2019 Criminal Procedure Rules Committee 6 II. CHAIR’S REPORT
The minutes of October 19, 2018 were presented for approval. Robert Scavone stated that he believed the discussion regarding referral 16-18-III was oddly worded. Specifically, on page 9, in the second paragraph, “Mr. Scavone presented the opinion of a minority of the members of the Subcommittee III, which is that, if Ms. Woolf’s vote is invalid, the proposed rule will have to go back to the subcommittee for another vote.” After a short discussion, it was agreed that the sentence would be stricken in its entirety. After that deletion, the minutes were approved by unanimous acclamation. The motion to approve the corrected minutes was made by Varinia Van Ness and seconded by Carlton Duke Fagan, Jr.
The Chair discussed one case of interest, SC17-882, wherein the Court removed the 5 days for service by e-mail. Specifically, Rule 3.040 relating to the computation of time was amended to remove “or e-mail,” which eliminated any difference in the treatment of service by regular mail and e-mail. Additionally, Rule 3.070, which allowed for additional time for service by regular mail, was deleted so that the rule was consistent with the other rules related to service time limits. The opinion was released on October 24, 2018 and the change was effective January 1, 2019.
The Chair also discussed the Criminal Law Section’s luncheon that the Criminal Rules Committee has agreed to attend. The new attorney general, Ashley Moody, has been invited to be the speaker. However, there are several other speakers being considered should Ms. Moody not be able to accept. A group invitation should be sent to the Committee within approximately one month providing the details for the luncheon, including the amount and how to pay.
III. LIAISON REPORTS:
Rules of Judicial Administration Committee (“RJA”) Hon. Jon Morgan stated that the RJA had just started its meeting and that it would probably go late but noted that RJA would not take action on the issue regarding the proposed amendment to Rule 2.420 dealing with the filing of confidential documents because the subcommittee inadvertently decreased the clerk’s responsibility to determine confidentiality, which was not the intent.
Appellate Court Rule Committee (“ACRC”) Hon. T. Kent Wetherell indicated that the ACRC is getting ready to publish the amendments for its 2020 cycle report, which should be effective by January of 2021. However, it was noted that the 2017 report was not published and effective until 2019. Additionally, it was noted that the Florida Supreme Court is looking to change the brief elements of the jurisdictional brief and eliminating the argument summary. It was also noted that the Court eliminated the need to file a motion to toll time if a motion to extend time to file a brief was filed because in all other areas, when a motion to extend time is filed, that automatically tolls the prior time. Thus, the Committee is trying to make the rule more logical. Additionally, it was noted that the ACRC
June 28, 2019 Criminal Procedure Rules Committee 7 decided to wait to create any rules regarding Amendment 6 to see if any Rules Committees are going to create any rules or the Legislature is going to adopt any new laws. Otherwise, the ACRC discussed that Amendment 6 is more of a case management issue for the courts and not for the rules committees. There was a discussion about deleting the notice to the attorney general regarding criminal rules because the attorney general is tasked with replying on behalf of the State. Lastly it was discussed that the ACRC discussed whether there should be a time frame for a defendant seeking review on a stand-your-ground immunity motion. Currently, unlike a writ of certiorari, which has a thirty-day deadline for filing for review, there is no deadline for a defendant to file a writ of prohibition. It was noted that recently a defendant waited until the eve of a jury trial to file a writ of prohibition to request review of the trial court’s denial of the motion, which tolls the trial if the appellate court issues an order to show cause. Thus, in that case, a continuance of the trial was required and the sudden delay wasted state and court resources.
Circuit Judges Liaison Hon. Angela Dempsey indicated that there was nothing new to report; however, it was mentioned that the judges had been discussing the passage of Marcy’s Law and did not think the two-year limit was realistic in many cases.
County Court Judges Liaison Hon. Stephen Everett indicated that there was nothing new to report.
Florida Defense Attorney Association Liaison Jude Faccidomo indicated that there was nothing new to report.
Florida Public Defender Association Liaison Jane McNeill indicated that there was nothing new to report.
Florida Prosecuting Attorneys Association Adrienne Ellis indicated that there was nothing new to report.
Florida Supreme Court Criminal Steering Committee Diana Bock was not present but Heather Telfer noted that there was a recent proposal from the steering committee regarding Rule 3.851, Collateral relief after death sentence has been imposed and affirmed on direct appeal, and that the comment period would begin soon. The committee members were encouraged to let the Chair know if they thought the Committee should comment as a whole but it was noted that committee members are certainly free to comment as individuals also.
June 28, 2019 Criminal Procedure Rules Committee 8
IV. STANDING SUBCOMMITTEE REPORTS
Subcommittee I (Rules 3.010 – 3.180) Hon. Angela Dempsey, Chair, presented for Subcommittee I.
18-07-I The subcommittee reviewed Rule 3.133(b) relating to adversarial preliminary hearings. It was decided that no changes were need to the rule because the issues raised by the referral were not pervasive enough to require a rule amendment at this time.
18-05-I The subcommittee reviewed Rule 3.111(f), formerly referral 16-18-III, due to the clerk’s concerns on how to file ex parte motions under seal as previously approved by the Committee. It was indicated that the subcommittee was frustrated because they know what needs to be done regarding confidential documents; however, because the clerk cannot implement the confidentiality of the documents as needed, they need to wait on RJA to make changes. Heather Telfer stated that Krys Godwin and RJA had been discussing the problems with Rule 2.420 and how a confidential document is confidential to the public but not to the opposing party. It was agreed that the rule as is will never meet the requirements of filing a document under seal. It was noted that this same issue is creating problems in other areas, such as during probate when vulnerable adults must list out account numbers; therefore, RJA is working on the rule. Roseanne Eckert noted that in federal court, they simply file paper documents under seal. Heather Telfer pointed out that the State is trying to be electronic but acknowledged that it may have to use the paper method for certain confidential documents. Varinia Van Ness asked why officers can file arrest warrants and search warrants that remain confidential until served by other parties cannot and Matt Whyte stated that Rule 2.420(c)(8) orders that the clerk’s office hold such documents in confidence until served. Mr. Whyte noted that the problem with the current rule is that the system is split between the paper world and the electronic world and thus, a party can see a confidential document until it is sealed. Mr. Whyte noted that there are twenty-two items that are listed by the rule and if your pleading is not contained in that list, you can ask to have a document filed as confidential, but you are only given a short amount of time to ask for a motion and order by the court. It was agreed by the members that the better practice now is to file the document and request it be sealed by the clerk pursuant to Andrews, but that an order will still be required from the court.
Subcommittee II (Rules 3.190 – 3.219) Hunter Chamberlin, Chair, presented for Subcommittee II.
18-14-II The subcommittee reviewed State v. S.A., which dealt with the speedy trial issue in juvenile cases. In that case, because the speedy trial was viewed as a five-day and a ten-day period as opposed to a fifteen-day period, the juvenile was not tried for seventeen days and he moved to dismiss. Although Justice Pariente suggested the speedy trial period should be one fifteen-day period, the Court declined and told the juvenile court committee to make their rule consistent
June 28, 2019 Criminal Procedure Rules Committee 9 with the criminal rules committee rule. Thus, Mr. Chamberlin indicated that he would be working with the juvenile rules committee to make sure their rule is consistent with our rule.
Subcommittee III (Rules 3.220 – 3.240) Robert Scavone, Chair, presented for Subcommittee III.
18-10-III The subcommittee had previously reviewed whether Rule 3.220 (Discovery) should be amended to address defense requests for ex parte investigative subpoenas. Mr. Scavone noted that the subcommittee met prior to the Committee meeting and agreed that there were several issues that still needed to be researched. Research assignments were divided among the members of the subcommittee and a reporting deadline was set so that the subcommittee would be able to report to the Committee by the June meeting.
Subcommittee IV (Rules 3.250 – 3.570) Jude Faccidomo, Chair, presented for Subcommittee IV and noted there were no new referrals.
Subcommittee V (Rules 3.580 – 3.790) Richard Mantei, Chair, presented for Subcommittee V and noted there were no new referrals.
Subcommittee VI (Rules 3.800 – End) Roseanne Eckert, Chair, presented for Subcommittee VI
18-09-VI The subcommittee reviewed whether Rule 3.810 should be amended to allow commitment packets to be transferred electronically and whether the requirement of “certified copies” prohibits the electronic transfer of commitment packets. The subcommittee decided that the rule did not need to be amended at this time. Judge Wetherell noted that the rule is not new and that there is no reason why the Department of Corrections cannot accept an electronic version of the commitment package if they want to. The Committee agreed that there was no reason to amend the rule to remove the reference to certified copies.
18-13-VI The subcommittee reviewed whether Rule 3.800(b)(1) should be amended to reflect a change to Florida Rule of Appellate Procedure 9.020(h). The subcommittee voted 9 to 0 that the rule should be amended to conform to the change in the appellate rule. The Committee voted and the amendment passed 28-0.
Subcommittee VII (Ad Hoc / Fast Track) Patrice Behnstedt, Chair, presented for Subcommittee VII and noted that there were no new referrals.
June 28, 2019 Criminal Procedure Rules Committee 10 (Oversight / IOP Subcommittee) Sheila Ann Loizos presented for the IOP Subcommittee
18-11-IOP The subcommittee reviewed a referral by David Thompson regarding whether there should be a period of time that needs to pass before a referral that has been rejected by the full committee can be referred again. The subcommittee discussed the concern that the prior “three-strike” rule did not always allow for a subcommittee to fully discuss all the issues, which could mean the full Committee did not get to review the best product possible. However, the subcommittee did not want the Committee’s time wasted repeatedly reviewing a rule that had been previously rejected. The subcommittee unanimously agreed to delete “[b]ut this option may only be exercised twice” and added paragraph 6 to read as follows: “If a request for amendment has been fully explored and was voted down by the full Committee, a similar request shall not be addressed again within one calendar year, unless the referral is from the Supreme Court of Florida.” Mr. Tannebaum voiced a concern that such a one-year rule might inhibit the Committee’s ability to re-look at a rule based upon changes in the law. Judge Sayfie was concerned about whose decision it would be that a rule had been previously reviewed as opposed to it being a new referral, especially when the Committee vote was close. However, Robert Holborn pointed out that in such a case, the Committee could always vote to waive the IOPs and allow the Committee to waive the one- year rule. Mr. Fagan stated that he thought the one-year rule seemed fair in light of the Committee’s limited resources and agreed that the Committee’s ability to waive the IOP if needed. Mr. Chamberlin thought a nine-month limit was better. Mr. Faccidomo argued that it was a solution without a problem and noted that subcommittee III had such an issue with investigative subpoenas and they were able to resolve their issues, which showed the current system works. Mr. Schwartz argued that setting an artificial time ignores the constant changing membership of the Committee and thus was an unfair attempt to tie the hands of the members joining the Committee. Judge Berger stated that she agreed with Judge Wetherell and that there must be some finality and noted that the Committee votes to waive the IOPs whenever necessary. Ms. Van Ness stated that the amendment to the rule regarding investigative subpoenas would have passed had the membership not changed, but new members had questions about it. However, Heather Telfer noted that under the proposed change, the problem that arose with investigative subpoenas would have been solved because it could have been returned to the subcommittee to address the additional questions rather than declaring it dead. Judge Dempsey thought the one-year limit was a good balance between not wasting the Committee’s resources hearing the same issue over again and allowing for the opinion of new members. Varinia Van Ness moved to call the question and Robert Holborn seconded the motion. Judge Wetherell asked whether it would be a prospective rule only to which Heather Telfer indicated it would. The Committee voted and the amendment passed 23-4 with Mr. Schwartz and Bonita Jones- Peabody abstaining.
18-12-IOP The subcommittee reviewed a referral by Varinia Van Ness regarding whether a clerk representative appointed to the subcommittees can vote at the subcommittee level. The subcommittee voted 4 to 2 to allow clerk representatives to vote at the subcommittee level but not the Committee level. Jane McNeil started off the discussion and noted that she greatly appreciates the clerk’s input during the subcommittee meetings and does not think that the
June 28, 2019 Criminal Procedure Rules Committee 11 representatives would be any less engaged if they could not vote. Judge Hersh agreed and noted that if the representatives will not pay attention during the meetings unless they can vote, then they should get off the Committee. Judge Hersh argued that clerks do not have the same agenda as lawyers and they do not have the same constitutional requirements. Varinia Van Ness noted that Ms. Woolf said that she was voting against the rule because there was no way to implement it, which as nothing to do with due process. Thus, she thought the representatives should have input, but not a vote, at the subcommittee level. Mr. Fagan agreed and noted that although they hep us understand the issues, it is ultimately the practitioners who must follow the rules and thus, are in a better position to vote. Robert Scavone inquired as to why the appellate rules committee allows the clerks to vote and it was indicated that there were not enough people in certain areas so ad hoc membership was needed at the subcommittee level sometimes. Judge Hersch voted to reject the subcommittee’s recommended IOP change and Varinia Van Ness seconded the motion; but ultimately, the language was changed so that the issue the Committee voted on was that a clerk representative does not have a vote at the Committee level or the subcommittee level. The recommended language prohibiting the clerk representatives from having a vote passed 14 to 11. After the vote, it was clarified by Heather Telfer that because the clerk representative does not have a vote, their presence at a meeting does not count towards having a quorum. Thus, the membership of the subcommittees will have to be reviewed and changed were necessary so that they each comply with the IOPs regarding subcommittee membership.
Fast Track Subcommittee Sheila Ann Loizos presented for the Fast Track Subcommittee.
18-04-FT The subcommittee reviewed whether rules should be committed regarding Amendment 6, known as Marcy’s Law. After a discussion including the fact Chapter 960, Florida Statutes, has similar victim rights and no rules were created when that law was passed, and including the fact that the two-year limit regarding deadlines for post-conviction was a reporting requirement, the subcommittee unanimously decided not to take action on the referral at this time in order to see if the courts or the Legislature take steps to clarify the amendment. Judge Wetherell noted that the First District Court of Appeals enters an order when there has not been an opinion issued on an appeal within two years to explain why deadlines have not been complied with; however, he acknowledged that no other appellate court in Florida was doing anything similar. Judge Wetherell also noted that for the courts to define any language, it would require a case of controversy. Lastly, Judge Wetherell noted that because the appellate rules committee was also taking a wait and see approach, and since the courts will acknowledge they cannot address the amendment unless a case is before them, we are essentially ceding authority over to the Legislature to enact laws.
June 28, 2019 Criminal Procedure Rules Committee 12 V. NEW BUSINESS: The Chair discussed the meeting earlier in the day of the chairs of the rules committees, the Florida Bar President Michelle Suskauer; President Elect John M. Stewart; Krys Godwin, Florida Bar liaison; and Justice Canady. The Chair reminded the Committee of the Florida Bar President’s request for suggestions to improve and streamline the rule making process in Florida. Specifically, the Chair noted that in the earlier meeting Justice Canady stated that Florida’s Supreme Court may be willing to move away from the ex parte rule and to discussion prior to a rule being presented to the Court. Justice Canady also indicated that there might be a shift away from using oral arguments to present proposed rule changes to the Court and to allow for more interactive workshops. The Committee was also told that some of the potential suggestions for change included reducing the length of the reporting cycle and making term limits for rule committee members longer than other committees to maintain the historical knowledge in the rule making process. Finally, the Committee was told that an e-mail would be sent out shortly by Heather Telfer requesting their input so that a final report can be submitted to Michelle Suskauer by April 1, 2019.
VI. ADJOURNMENT The Committee was reminded of the next meeting scheduled for June 28, 2019 in Boca Raton and then the meeting was adjourned at 4:35 p.m.
Respectfully submitted,
Sheila Ann Loizos Acting Secretary
June 28, 2019 Criminal Procedure Rules Committee 13 THE FLORIDA BAR CRIMINAL PROCEDURE RULES COMMITTEE
SUBCOMMITTEE ACTION REPORT
TO: Sheila Loizos
FROM: Hon. Angela Dempsey
Please be advised that Subcommittee I conducted a meeting on May 28, 2019, by conference call to discuss docket number 19-04-I.
Subcommittee attendance was as follows:
Member Name Present Not Present Hon. Angela Dempsey, Chair X Jane McNeill, Oversight X Patrice Behnstedt X Hon. Gary Bergosh X Doug Duncan X Hon. Stephen Everett X Duke Fagan X James Stewart X Jeffrey Swartz X Brian Tannebaum X
Additional participants included: Heather Telfer, Bar Liaison
The Subcommittee took the following action:
1. Determined that the submission is within the scope of Subcommittee authority. YES
2. Made the following work assignments: N/A
3. Made the following decisions: The Subcommittee reviewed the rules to see there any instances in which a document is served, but not filed. No one could think of any rules that would fall into that category. Rule 3.030 (Service and Filing of Pleadings and Documents) is quite broad.
Subcommittee members we asked to report back if they thought of any rules that would fall into this category.
1 June 28, 2019 Criminal Procedure Rules Committee 14 The Subcommittee Chair is prepared to report to the full Committee at the meeting on June 28, 2019.
Hon. Angela Dempsey Subcommittee Chair
cc: Committee Chair Committee Secretary The Florida Bar Liaison
2 June 28, 2019 Criminal Procedure Rules Committee 15 $upreme
CHARLES T. CANADY JOHN A. TOMASINO CHIEF JUSTICE CLERK OF COURT RICKY POLSTON JORGE LABARGA SILVESTER DAWSON C. ALAN LAWSON February 11, 2019 MARSHAL BARBARA LAGOA ROBERTJ.LUCK CARLOS G. MuNIZ JUSTICES
Mr. Eduardo I. Sanchez, Chair Rules of Judicial Administration Committee United States Attorney's Office 99 N.E. 4th Street, Suite 800 Miami, Florida 33132-2131
Re: Service of Documents Not Filed in a Court Proceeding
Dear Mr. Sanchez:
At the direction of the Court, I am writing you in your capacity as Chair of the Rules of Judicial Administration Committee to ask your committee to coordinate the submission of a joint out-of-cycle rules report, as provided for in Florida Rule of Judicial Administration 2.140(a)(7). The Court would like the rules committees to review their respective bodies of rules and propose rule amendments that will require documents that are to be served but not filed with the court to be served in accordance with Florida Rule of Judicial 2.516 (Service of Pleadings and Documents).
In Wheaton v. Wheaton, No. SCI 7-716 (Fla. 2019), a majority of the Court recently determined that a proposal for settlement is not subject to the service requirements of rule 2.516 because the proposal must be served on the party to whom it is made but not be filed with the comi. As you may know, rule 2.516 was proposed, along with conforming amendments to other rules, as "a comprehensive proposal to implement e-mail service in Florida." Wheaton v. Wheaton, No. SCl 7 716 (Canady, C.J., concurring in result with opinion) (citing In re Amends. to Fla.
June 28, 2019 Criminal Procedure Rules Committee 16 Mr. Eduardo I. Sanchez February 11, 2019 Page:2
Rules ofJud. Admin., Fla. Rules ofCiv. Pro., Fla. Rules ofCrim. Pro, Fla. Prob. Rules, Fla Rules ofTraffic Court, Fla. Small Claims rules, Fla. Rules ofJuv. Pro., Fla Rules ofApp. Pro., Fla. Family Law Rules ofPro-E-Mail Serv. Rule, 102 So. 3d 505, 506 (Fla. 2012)). Therefore, the Comi would like the rules committees to propose any rule amendments necessary to ensure that service of documents that are not filed with the court, like service of documents that are filed, is governed by rule 2.516.
Please file your report with my office by August 1, 2019, with copies to Justice Polston, the Cami's liaison to your committee, and Deborah Meyer, the Court's director of central staff. Ifyou should determine that the committees need more time to consider the issue, please submit a request for extension of time to my office indicating when the joint report can be filed. Thank you in advance for your attention to this matter, and please do not hesitate to contact me or Justice Polston, if you have any questions.
ohn A. Tomasino
JAT/dm/sb
Enclosure cc: Hon. Ricky Polston, Liaison, Rules of Jud. Admin. Committee Hon. Judge James Hankinson, Chair Crim. Court Steering Committee Mr. Joshua E. Doyle, Executive Director, The Florida Bar Ms. Courtney Brewer, Chair, App. Court Rules Committee Mr. Scott Dimond, Chair, Civ. Pro. Rules Committee Ms. Sheila Loizos, Chair, Crim. Pro. Rules Committee Ms. Maria Obradovich, Chair, Fam. Law Rules Committee Mr. David Silverstein, Chair, Juv. Court Rules Committee Mr. Theodore Kypreos, Co-Chair, Probate Rules Committee Ms. Cristina Papanikos, Co-Chair, Probate Rules Committee Ms. Christina Magee, Chair, Small Claims Rules Committee ,,Ms. Anne Gennusa, Chair, Traffic Court Rules Committee ~Ms. Krys Godwin, Bar Staff Liaison, Rules of Jud. Admin. Committee Ms. Deborah J. Meyer, Supreme Court Director of Central Staff
June 28, 2019 Criminal Procedure Rules Committee 17 ~upreme ~ourt of jflortba
No. SCI 7-716
SANDRA KENT WHEATON, Petitioner,
vs.
MARDELLA WHEATON, Respondent.
January 4, 2019
QUINCE,J.
Petitioner Sandra Wheaton seeks review ofthe decision ofthe Third District
Court of Appeal in Wheaton v. Wheaton, 217 So. 3d 125 (Fla. 3d DCA 2017), on
the ground that it expressly and directly conflicts with Boatright v. Phillip Morris
USA, Inc., 218 So. 3d 962 (Fla. 2d DCA 2017), McCoy v. R.J. Reynolds Tobacco
Co., 229 So. 3d 827 (Fla. 4th DCA 2017), and Oldcastle Southern Group, Inc., v.
Railworks Track Systems, Inc., 235 So. 3d 993 (Fla. lst DCA 2017), regarding
whether proposals for settlement made pursuant to section 768.79, Florida Statutes
(2018), and Florida Rule of Civil Procedure 1.442 must comply with the email
service provisions of Florida Rule ofJudicial Administration 2.516. We have
June 28, 2019 Criminal Procedure Rules Committee 18 jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons that follow, we
quash the decision of the Third District.
FACTS AND PROCEDURAL HISTORY
Respondent, Mardella Wheaton, sued her ex-daughter-in-law, Petitioner,
Sandra Wheaton, for unlawful detainer. Petitioner served a proposal for settlement
on Respondent via email. Respondent received the proposal but did not accept it.
The trial court granted Petitioner's motion for summary judgment.1
Petitioner then moved to enforce her proposal for settlement and to collect
attorney's fees. Respondent opposed the motion on three grounds: (1) the proposal
was vague; (2) the proposal was not made in good faith; and (3) the proposal failed
to strictly comply with the e-mail service requirements of rule 2.516. The trial
court rejected the vagueness argument but agreed that the proposal failed to strictly
comply with the requirements of rule 2.516. 2 The basis for the trial court's ruling
was that Petitioner's email "did not include a certificate of service, a subject line
containing the words 'SERVICE OF COURT DOCUMENTS,' and [failed to
1. Respondent appealed the summary judgment loss to the Third District, which affirmed the trial court per curiam. Wheaton v. Wheaton, 194 So. 3d 1036 (Fla. 3d DCA 2016).
2. Because the trial court found that the proposal was unenforceable, it did not reach the issue of whether the offer was made in good faith.
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June 28, 2019 Criminal Procedure Rules Committee 19 comply with] other requirements of rules 1.442, 1.080 and 2.516 of the Florida
Rules of [Civil Procedure and Judicial Administration.]" In suppmi of its
conclusion, the trial court relied on the Fomih District Court of Appeal's decision
in Matte v. Caplan, 140 So. 3d 686 (Fla. 4th DCA 2014), and precedent from this
Court stating that section 768.79and1ule 1.442 must be strictly construed.
Therefore, according to the trial court, Petitioner's failure to comply with all ofthe
formatting requirements set forth in rule 2.516(b)(l)(E) rendered the proposal
unenforceable.
Petitioner appealed the trial court's decision to the Third District Court of
Appeal, arguing that "because the proposal for settlement is neither a pleading nor
a 'document filed in any court proceeding,' it is not subject to the requirements of
rule 2.516." Wheaton, 217 So. 3d at 127. The Third District acknowledged that
subdivision (a) of rule 2.516 applies only to documents that are filed in court
proceedings, and that section 768.79 and rule 1.442 expressly forbid a party from
filing a proposal when it is initially served. Id. However, the court disagreed with
Petitioner's reliance on the language in subdivision (a) of rule 2.516. Id. Instead,
the court found that "[t]he relevant language is contained in subdivision (b) of rule
2.516, which provides in pertinent part: 'All documents required or permitted to be
served on another party must be served by e-mail, unless the parties otherwise
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June 28, 2019 Criminal Procedure Rules Committee 20 stipulate or this rule otherwise provides.'" Id. The district court went on to hold
that
the document in question (the proposal for settlement) is "permitted to be served on another party." And because the parties did not "otherwise stipulate," and because the rule does not "otherwise provide,"! · this proposal for settlement "must be served by e-mail" and therefore must be served in compliance with the e-mail requirements of1ule 2.516, regardless of whether the document is contemporaneously filed with the court. We find this language plain and unambiguous, and hold that a proposal for settlement falls clearly 71 within the scope ofl {"pageset":"S irule 2.516(b) and is subject to that rule's requirements.
Id. at 127-28 (footnote omitted). In so holding, the district court noted that it
"agree[d] with the decision and analysis" set foiih in the First District Court of
Appeal's decision in Floyd v. Smith, 160 So. 3d 567 (Fla. 1st DCA 2015), and the
Fourth District's decision in Matte v. Caplan, 140 So. 3d 686 (Fla. 4th DCA 2014).
Wheaton, 217 So. 3d at 128.
Petitioner filed a motion for rehearing, arguing that the district court's
decision was inconsistent with this Court's decision in Kuhajda v. Borden Dairy
Co. ofAlabama, LLC, 202 So. 3d 391 (Fla. 2016), which was published after
briefmg was completed in Wheaton. The district court summarily denied
Petitioner's motion. Now before this Court, Petitioner contends that the Third
District's decision expressly and directly conflicts with Boatright v. Phillip Morris
USA, Inc., 218 So. 3d 962 (Fla. 2d DCA 2017), McCoy v. R.J. Reynolds Tobacco
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June 28, 2019 Criminal Procedure Rules Committee 21 Co., 229 So. 3d 827 (Fla. 4th DCA 2017), and Oldcastle Southern Group, Inc. v.
Railworks Track Systems, Inc., 235 So. 3d 993 (Fla. 1st DCA 2017).
ANALYSIS
The conflict issue presented is whether proposals for settlement made
pursuant to section 768.79, Florida Statutes, and Florida Rule ofCivil Procedure
1.442 must comply with the email service provisions of Florida Rule of Judicial
Administration 2.516. The standard ofreview in determining whether an offer of
settlement comports with section 768.79, Florida Statutes, and Florida Rule of
Civil Procedm·e 1.442 and is de novo. Pratt v. Weiss, 161 So. 3d 1268, 1271 (Fla.
2015). Because the conflict issue involves the interpretation ofthe Court's rnles,
in this case Florida Rule of Judicial Administration 2.516, the standard of review is
also de novo. Saia Motor Freight Line, Inc. v. Reid, 930 So. 2d 598, 599 (Fla.
2006).
Relevant Provisions
Section 768.79, Florida Statutes ("Offer ofjudgment and demand for
judgment"), "provides a sanction against a party who unreasonably rejects a
settlement offer." Willis Shaw Exp., Inc. v. Hilyer Sod, Inc., 849 So. 2d 276, 278
(Fla. 2003). Section 768. 79 provides in relevant part:
In any civil action for damages filed in the courts of this state, ifa defendant files an offer ofjudgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by her or him on the
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June 28, 2019 Criminal Procedure Rules Committee 22 defendant's behalf ... if ... the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set offsuch costs and attorney's fees against the award.
The statute further provides that an offer shall:
(a) Be in writing and state that it is being made pursuant to this section. (b) Name the party making it and the party to whom it is being made. (c) State with particularity the amount offered to settle a claim for punitive damages, if any. (d) State the total amount.
§ 768.79(2), Fla. Stat. (2018). The section also states that a proposal "shall be
served upon the party to whom it is made, but it shall not be filed unless it is
accepted or unless filing is necessary to enforce the provisions ofthis section."
§ 768.79(3), Fla. Stat. (2018).
Section 768.79 is implemented by Florida Rule of Civil Procedure 1.442
("Proposals for Settlement"). The rule provides that a proposal shall:
(A) name the party or parties making the proposal and the party or parties to whom the proposal is being made; (B) state that the proposal resolves all damages that would otherwise be awarded in a final judgment in the action in which the proposal is served, subject to subdivision (F); (C) state with particularity any relevant provisions; (D) state the total amount ofthe proposal and state with particularity all nonmonetary terms ofthe proposal; (E) state with particularity the amount proposed to settle a claim for punitive damages, if any; (F) state whether the proposal includes attorneys' fees and whether attorneys' fees are part ofthe legal claim; and
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June 28, 2019 Criminal Procedure Rules Committee 23 (G) include a certificate of service in the form required by rule 1.080.
Fla. R. App. P. 1.442(c)(2). The rule also states that a proposal "shall be served on
the party or parties to whom it is made but shall not be filed unless necessary to
enforce the provisions ofthis rule." Fla. R. App. P. 1.442(d).
While rule 1.442 requires proposals for settlement to include a certificate of
service, rule 1.080 no longer contains a certificate of service provision. Instead,
the rule states that "[e ]very pleading subsequent to the initial pleading, all orders,
and every other document filed in the action must be served in conformity with the
requirements ofFlorida Rule of Judicial Administration 2.516." Fla. R. Civ P.
l.080(a). 3
The relevant portions of rule 2.516 provide:
(a) Service; When Required. Unless the court otherwise orders, or a statute or supreme court administrative order specifies a different means of service, every pleading subsequent to the initial pleading and every other document filed in any court proceeding, except applications for witness subpoenas and documents served by formal notice or required to be served in the manner provided for service of formal notice, must be served in accordance with this rule on each party. No service need be made on patiies against whom a default has been entered, except that pleadings asserting new or additional claims against them must be served in the manner provided for service of summons.
3. Rule l.080(t) used to contain a certificate of service provision, but it was deleted in 2012 when rule 2.516 was adopted. See In re Amend. to Fla. Rules of Jud. Admin., 102 So. 3d 505, 510 (Fla. 2012).
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June 28, 2019 Criminal Procedure Rules Committee 24 (b) Service; How Made. When service is required or permitted to be made upon a party represented by an att01ney, service must be made upon the atto1ney unless service upon the party is ordered by the court. (1) Service by Electronic Mail ("e-mail"). All documents required orpermitted to be served on another party must be served by e-mail, unless the parties otherwise stipulate or this rule otherwise provides. A filer of an electronic document has complied with this subdivision if the Florida Courts e-filing P01ial ("Portal") or other authorized electronic filing system with a supreme court approved electronic service system ("e-Service system") served the document by e-mail or provided a link by e-mail to the document on a website maintained by a clerk ("e-Service"). The filer ofan electronic document must verify that the P01ial or other e-Service system uses the names and e-mail addresses provided by the parties pursuant to subdivision (b )(1 )(A).
(Emphasis added.) The rule goes on to provide the following formatting requirements:
(i) All documents served by e-mail must be sent by an e-mail message containing a subject line beginning with the words "SERVICE OF COURT DOCUMENT" in all capital letters, followed by the case number and case style of the proceeding in which the documents are being served. (ii) The body of the e-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with that e-mail, and the name and telephone number of the person required to serve the document. (iii) Any document served by e-mail may be signed by any of the "/s/," "Is," or "s/" formats. (iv) Any e-mail which, together with its attached documents, exceeds the appropriate size limitations specified in the Florida Supreme Court Standards for Electronic Access to the Court, must be divided and sent as separate e-mails, no one of which may exceed the appropriate size limitations specified in the Florida Supreme Court Standards for Electronic Access to the Court and each of which must be sequentially numbered in the subject line.
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June 28, 2019 Criminal Procedure Rules Committee 25 Fla. R. Jud. Admin. 2.516(b)(l)(E)(i)-(iv).
Conflict Cases
In Boatright, the plaintiffs served four proposals for settlement on the
defendants--one from each plaintiff to each defendant. Boatright, 218 So. 3d at
964. The proposals were sent to the defendants via U.S. certified mail. Id.
Following a jury verdict in their favor, the plaintiffs filed a motion for attorney's
fees and costs based in pati on the defendants' failure to accept the proposals for
settlement. Id. The trial court denied the motion, finding that the plaintiffs were
not entitled to attorney's fees and costs because they did not serve their proposals
for settlement on the defendants by email, and therefore failed to strictly comply
with section 768.79 and rule 1.442. Id.
In reversing the trial court, the Second District held that "proposals for
settlement are not subject to the service requirements of rule 2.516 because the
proposals do not meet rule l.080(a)'s threshold requirement that they be 'filed in
the action.' " Id. at 965. Additionally, the district court rejected the Wheaton
court's reliance on subdivision (b) of rule 2.516, reasoning that "rule 2.516(b)(l)'s
mandatory service requirement is confined to every pleading subsequent to the
initial pleading and documents that are filed in court-it does not extend to literally
every document which is due to be served." Id. at 970. In doing so, the district
court certified conflict with the Third District's decision. Id. at 971.
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June 28, 2019 Criminal Procedure Rules Committee 26 In McCoy, the plaintiff served a proposal for settlement on each ofthree
defendants by U.S. ce1iified mail. McCoy, 229 So. 3d at 828. The defendants
received the proposals for settlement but did not accept them. Id. After trial, the
plaintiff obtained a verdict that entitled him to attorney's fees under section 768.79
and moved for attorney's fees. Id. The defendants opposed the motion, arguing
that the plaintiff failed to email the proposals pursuant to rule 2.516. Id. The trial
court denied the motion. Id.
The F omih District reversed the trial court, finding that "[ w ]here a party has
actual notice of an offer of settlement, and the offering party has satisfied the
requirements of section 768.79 on entitlement, to deny recovery because the initial
offer was not emailed is to allow the procedural tail of the law to wag the
substantive dog." Id. (citing Kuhajda, 202 So. 3d 391). The court noted that both
section 768.79 and rule 1.442 require service ofproposals for settlement but
prohibit filing, and found that as applied to rule 2.561(a), a proposal for settlement
is neither a pleading nor a document "filed in any court proceeding." McCoy, 229
So. 3d at 829 (quoting Fla. R. Jud. Admin. 2.516(a)). Thus, "under the plain
language ofRule 2.516(a), then, the initial offer ofjudgment is outside oftlte email
requirements ofthat rule." Id. at 829.
The district court also disagreed with Wheaton, stating tltat in reaching its
conclusion, the Third District
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June 28, 2019 Criminal Procedure Rules Committee 27 imports language from rule 2.516(b) to add words to the plain language of2.516(a). Instead offocusing on subsection 2.516(a), which specifies when email service is "required," the Wheaton court looked to subsection 2.516(b) to hold that email service was required for the initial delivery of an offer ofjudgment. We disagree with Wheaton; subsection (a) is not ambiguous, so a court should not add words to manipulate its meaning.
Id. (citation omitted).
In Oldcastle, the plaintiff sent a proposal for settlement by email to the
defendant. Oldcastle, 235 So. 3d at 993-94. The defendant received the
proposal-but did not accept it-and then the plaintiff received a judgment more
than 25 percent greater than the amount demanded in the proposal. Id. at 994
(citing § 768.79(1 ), Fla. Stat. (2014)). The defendant argued that the proposal had
to be served in accordance with rule 2.516, which the First District rejected. Id. at
995.
The district court acknowledged that the plaintiff's proposal did not comply
with the formatting requirements set forth by rule 2.5 l 6(b )(1 )(E). However, the
court found that these requirements did not apply because "compliance with rule
2.516 is not required when serving a proposal for settlement." Id. at 994. To reach
its conclusion, the court examined rule 2.516(a) and found that "since the proposal
for settlement is not to be filed when it is served, the proposal is not included in the
clause 'every other document filed in any court proceeding.' " Id. at 994-95. In
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June 28, 2019 Criminal Procedure Rules Committee 28 doing so, the comi adopted the view ofBoatright and McCoy and certified conflict
with Wheaton. Oldcastle, 235 So. 3d at 994.
Interpretation
We have previously stated that both rule 1.442 and section 768.79 should be
strictly construed. See Campbell v. Goldman, 959 So. 2d 223, 226 (Fla. 2007)
(citing Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d 276 (Fla. 2003)).
"[W]hen the language ofthe statute is clear and unambiguous and conveys a clear
and definite meaning, there is no occasion for resorting to the rules of statutory
interpretation." Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (quotingA.R.
Douglass, Inc. v. McRainey, 137 So. 157, 159 (Fla. 1931 )); accord Forsythe v.
Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 454 (Fla. 1992). If,
however, the language of the rule is ambiguous and capable of different meanings,
this Court will apply established principles of statutory construction to resolve the
ambiguity. See, e.g., Gulfstream Park Racing Ass 'n, Inc., v. Tampa Bay Downs,
Inc., 948 So. 2d 599, 606 (Fla. 2006).
From the plain language of section 768.79 and rule 1.442, neither require
service by email. The procedure for communicating an offer of settlement is set
out in section 768.79(3), Florida Statutes (2018), which states:
The offer shall be served upon the party to whom it is made, but it shall not be filed unless it is accepted or unless filing is necessary to enforce the provisions of this section.
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June 28, 2019 Criminal Procedure Rules Committee 29 (Emphasis added.) The statute only requires that the offer be served on the party to
whom it is directed and not be filed with the comi but does not require service by
email.
Similarly, subdivision (d) of rule 1.442 outlines the procedure for
communicating a proposal for settlement to the opposing party. The subdivision
states:
(d) Service and Filing. A proposal shall be served on the party or parties to whom it is made but shall not be filed unless necessary to enforce the provisions ofthis rule.
Fla. R. Civ. P. 1.44 2( d). Again, the rule provides that the offer must be served on
the party to whom it is directed and not filed with the court but does not require
service by email. However, unlike section 768.79, rule 1.442 provides that a
proposal for settlement must "include a certificate ofservice in the form required
by rule 1.080." Fla. R. Civ. P. 1.442(c)(2)(G).
As previously mentioned, rule 1.080 does not specify the form of the
certificate of service. Instead, the rule provides:
Every pleading subsequent to the initial pleading, all orders, and every other document filed in the action must be served in conformity with the requirements ofFlorida Rule of Judicial Administration 2.516.
Fla. R. Civ. P. l.080(a) (emphasis added). This does not apply to proposals for
settlement because a settlement offer is neither a pleading subsequent to the initial
pleading, an order, or a document filed with the court. Accordingly, based on rule
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June 28, 2019 Criminal Procedure Rules Committee 30 l.080's plain language, rule 2.516 would not apply to proposals for settlement
made pursuant to section 768.79 and rule 1.442.
It appears that in reaching its conclusion to the contrary, the Third District
focused on construing rule 2.516 more than section 768.79 and rule 1.442.
However, even the plain language of rule 2.516 does not support the Third
District's conclusion. The provisions of rule 2.516 that are at issue in this case are
subdivision (a), "Service; When Required," and subdivision (b), "Service; How
Made." According to the first subdivision, "every pleading subsequent to the
initial pleading and every other document filed in any court proceeding ... must be
served in accordance with this rule." Fla. R. Jud. Admin. 2.516(a). The rule goes
on to state in the second subdivision that "[a]ll documents required or permitted to
be served on another party must be served by e-mail, unless the parties otherwise
stipulate or this rule provides otherwise." Fla. R. Jud. Admin. 2.516(b)(l).
Therefore, the plain language of the rule provides that if a document is ( 1) a
pleading subsequent to the initial pleading, or (2) a document filed in any court
proceeding, it must be served according to the rule. Then, the rule goes on to
provide that service must be made by email if the document (1) requires service or
(2) permits service.
The Third District appeared to agree that the rule only requires service if the
document is a pleading subsequent to the initial pleading or a document filed in
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June 28, 2019 Criminal Procedure Rules Committee 31 any court proceeding because it determined that a proposal for settlement is a
document that is "permitted to be served on another party." Wheaton, 217 So. 3d
at 127 (quoting Fla. R. Jud. Admin. 2.516(b)). However, if rule 2.516 creates two
groups of documents that must be filed-documents that are required to be served
and documents that are permitted to be served~proposals for settlement would not
fall in the latter group. The proposal for settlement statute provides that a proposal
"shall be served" on the party to whom it is made, but "shall not be filed" unless it
is accepted or filing is necessary to enforce the provisions of the statute. §
768.79(3), Fla. Stat. (2018). Similarly, the rule that implements section 768.79
states "[a] proposal shall be served on the party or parties to whom it is made but
shall not be filed unless necessary to enforce the provisions ofthis rule." Fla. R.
Civ. P. l.442(d). We have previously held that "[t]he word 'shall' is mandat01y in
nature." Sanders v. City ofOrlando, 997 So. 2d 1089, 1095 (Fla. 2008); see also
Fla. Bar v. Trazenfeld, 833 So. 2d 734, 738 (Fla. 2002) ("The word 'may' when
given its ordinary meaning denotes a permissive term rather than the mandatory
connotation of the word 'shall.' "). Therefore, a proposal for settlement is a
document that must be served on the party to whom it is made but must not be filed
with the court. By its plain language, a proposal for settlement is not a required
document as contemplated by rule 2.516. Accordingly, the Third District erred in
finding that a proposal for settlement is subject to the requirements of rule 2.516.
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June 28, 2019 Criminal Procedure Rules Committee 32 In suppoti of its conclusion, the Third District relied on two cases: the First
District's decision in Floyd, 160 So. 3d 567, and the Fourth District's decision in
Matte, 140 So. 3d 686. However, neither case addresses the issue of rule 2.516 as
it relates to proposals for settlement. In Floyd, the First District considered
whether a proposal for settlement had to contain "a certificate of service in the
form required by rule 1.080." Floyd, 160 So. 3d at 569 (quoting Fla. R. Civ. P.
1.442(c )(2)(G)). Having addressed that specific issue, Floyd is inapplicable to the
instant case because it did not consider the issue ofwhether rule 2.516 applied to
service ofa proposal for settlement. Likewise, in Matte, the court addressed a
motion for sanctions sought pursuant to section 57.105, Florida Statutes (2013).
Matte, 140 So. 3d at 687-88. In that case, the court overlooked the limitation
contained in rule 2. 516(a) and began its analysis by construing subdivision (b). In
doing so, the court found that preliminary service of a motion for sanctions under
section 57.105 must be accomplished by email. However, motions for sanctions
are similar to proposals for settlement in that they are forbidden from being
initially filed. See§ 57.105(4), Fla. Stat. (2018). This, as noted by the Second
District Court of Appeal, "constitutes a fatal flaw in that comi's reasoning."
Boatright, 218 So. 3d at 969; see also Douglas v. Zachry Indus., Inc., No.
6:13cvl9430rl40GJK, 2015 WL 6750803, at *3 (M.D. Fla. Nov. 5, 2015) ("It is
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June 28, 2019 Criminal Procedure Rules Committee 33 this Court's view that the Matte decision overlooked the limiting language-'filed
in any comt proceeding'-and reached an incorrect conclusion as a result.").
Moreover, even if this Court were to accept the Third District's
interpretation, Petitioner's failure to comply with the email formatting
requirements set forth in rule 2.516 would not render the proposal unenforceable.
Respondent contends that when parties seek to obtain attorney's fees, "all t's must
be crossed and i's dotted." Campbell, 959 So. 2d at 227 (Pariente, J., specially
concurring). However, we recently held that a proposal for settlement that did not
strictly comply with rule 1.442(c)(2)(F) was not invalid where the proposal
"complied with the relevant requirements of the rule that implemented the
substantive requirements of section 768.79." Kuhajda, 202 So. 3d at 396. In that
case, we recognized that section 7 68. 79 and rule 1.442 must be strictly construed
but found that strict construction was required "in contexts in which the provisions
of the rule implemented the substantive requirements of section 768.79." Id. at
395. Because we found that "the offers ofjudgment at issue in this case are not
ambiguous," we "decline[d] to invalidate Kuhajda's offers ofjudgment solely for
violating a requirement in rule 1.442 that section 768.79 does not require." Id. In
doing so, we reasoned that "[t]he procedural rule should no more be allowed to
trump the statute here than the tail should be allowed to wag the dog." Id. at 395
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June 28, 2019 Criminal Procedure Rules Committee 34 96. Ultimately, we held "a procedural rule should not be strictly construed to
defeat a statute it is designed to implement." Id. at 396
As applied to the instant case, even if we were to find that rule 2.516 applied
to proposals for settlement, Petitioner's failure to comply with the rule would not
render the proposal unenforceable because the proposal complied with the
substantive requirements set forth by section 768.79. Petitioner's proposal was in
writing, stated that it was made pursuant to the section, named the party making
the offer and the party to whom it was made, stated the amount offered to settle,
and the total amount as required by the statute. See§ 768.79(2)(a)-(d). Moreover,
the proposal stated that it would resolve all damages that would otherwise be
awarded in a final judgment, stated the relevant conditions, and whether the
proposal included attorney's fees as required by the additional provisions found in
the rule implementing the section. Fla. R. Civ. P. 1.442(c)(2). The only
deficiencies the trial court found in the proposal were related to requirements set
forth by rule 2.516. However, pursuant to Kuhajda, that should not be enough to
find that the proposal is unenforceable. Because the proposal complied with the
substantive requirements set forth by the statute, the proposal is valid.
CONCLUSION
The plain language of section 768.79 and rule 1.442 do not require service
by email. Moreover, because a proposal for settlement is a document that is
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June 28, 2019 Criminal Procedure Rules Committee 35 required to be served on the party to whom it is made, rule 2.516 does not apply.
Accordingly, the Third District erred in affirming the trial court. Accordingly, we
quash Wheaton, approve Boatright, McCoy, and Oldcastle, and remand for
proceedings consistent with this decision.
It is so ordered.
PARIENTE, LEWIS, POLSTON, and LABARGA, JJ., concur. CANADY, C.J., concurs in result with an opinion, in which LAWSON, J., concurs.
NO MOTION FOR REHEARING WILL BE ALLOWED.
CANADY, C.J., concmring in result.
I agree with the majority's conclusion that the "Petitioner's failure to comply
with the email formatting requirements" ofFlorida Rule of Judicial Administration
2.516 is not a basis for determining the settlement proposal to be invalid. Majority
op. at 17. But I disagree with the majority's holding that proposals for settlement
are not subject to the email service requirement of rule 2.516. Majority op. at 15.
So I would adopt the Third District's view of the interpretation of rule 2.516 but
reject its conclusion that the settlement offer was invalid.
The adoption of rule 2.516 was the culmination of an effort to develop "a
comprehensive proposal to implement e-mail service in Florida." In re
Amendments to Fla. Rules ofJudicial Admin., Fla. Rules ofCivil Procedure, Fla.
Rules ofCriminal Procedure, Fla. Prob. Rules, Fla. Rules ofTraffic Court, Fla.
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June 28, 2019 Criminal Procedure Rules Committee 36 Small Claims Rules, Fla. Rules ofJuvenile Procedure, Fla. Rules ofAppellate
Procedure, Fla. Family Law Rules ofProcedure-E-Mail Serv. Rule, 102 So. 3d
505, 506 (Fla. 2012) (emphasis added). In adopting 1ule 2.516, we acknowledged
that it "was modeled after" the then-existing Florida Rule of Civil Procedure 1.080.
Id. at 507. And we stated unequivocally that "new rule 2.516 provides that all
documents required or permitted to be served on another party must be served by
e-mail." Id. (emphasis added). Nothing in the history, context, or structure of the
rule suggests that the unqualified reference in the text of subdivision (b) to "[a]ll
documents required or permitted to be served" is intended to include only
documents that are filed. Fla. R. Jud. Admin. 2.516(b)(l) (emphasis added).
Subdivision (a) ofrule 2.516 contains general provisions concerning the
requirements for service ofpleadings and other documents that are "filed in any
court proceeding." Fla. R. Jud. Admin. 2.516(a). The scope of subdivision (a) is
thus limited to court filings. But that does not mean that the scope of subdivision
(b) is similarly limited. Subdivision (a) simply does not address documents that
are not filed. Subdivision (b ), by its express terms, specifies how service must be
made whenever "service is required or permitted to be made." Fla. R. Jud. Admin.
2.516(b). By its plain language, the scope of subdivision (b) necessarily extends
beyond documents that are filed in court proceedings to include documents that are
served but not filed.
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June 28, 2019 Criminal Procedure Rules Committee 37 The majority en-s in relying on the reference in Florida Rule of Civil
Procedure 1.442( c )(2)(G) to "a certificate of service in the form required by rule
1.080." Majority op. at 13. Since the adoption of rule 2.516 in 2012, rule 1.080
has not contained a form certificate of service. With the adoption of rule 2.516 the
form certificate of service was moved to the new 1ule, where it is set forth in
subdivision (t). So the reference on which the majority relies is an obsolete,
en-oneous reference to a superseded version ofrule 1.080-a nonsensical reference
that can only be treated as meaningless. It can certainly provide no guidance for
interpreting the scope of rule 2.516(b), much less a basis for disregarding the plain
language of that rule.
LAWSON, J., concurs.
Application for Review of the Decision of the District Court of Appeal- Direct Conflict of Decisions
Third District - Case No. 3Dl6-490
(Monroe County)
Maegan P. Luka, Philip J. Padovano, and Joseph T. Eagleton ofBrannock & Humphries, Tampa, Florida; and Robert Stober ofHersoff, Lupino & Yagel, LLP, Tavernier, Florida,
for Petitioner
Dale R. Coburn, Gaelan P. Jones, and Matthew S. Francis ofVemis & Bowling of the Florida Keys, P.A., Islamorada, Florida,
for Respondent
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June 28, 2019 Criminal Procedure Rules Committee 38 THE FLORIDA BAR CRIMINAL PROCEDURE RULES COMMITTEE
SUBCOMMITTEE ACTION REPORT
TO: Sheila Loizos
FROM: Hon. Angela Dempsey
Please be advised that Subcommittee I conducted a meeting on April 30, 2019, by conference call to discuss docket number 19-05-I.
Subcommittee attendance was as follows:
Member Name Present Not Present Hon. Angela Dempsey, Chair X Jane McNeill, Oversight X Patrice Behnstedt X Hon. Gary Bergosh X Doug Duncan X Hon. Stephen Everett X Duke Fagan X James Stewart X Jeffrey Swartz X Brian Tannebaum X
Additional participants included: Aaron Getty, Sarasota PD’s Office Varinia Van Ness, Committee Member Heather Telfer, Bar Liaison
The Subcommittee took the following action: 19-05-I
1. Determined that the submission is within the scope of Subcommittee authority. YES
2. Made the following work assignments: N/A
3. Made the following decisions: The Subcommittee voted 9-0 to take no further action.
4. Mr. Getty explained his position that a notice to appear (“NTA”) should not be a charging document. He explained that if an NTA is issued and the case is nolle prosse then the arrest stands, but if a warrant is issued and the State declines to prosecute, then
1 June 28, 2019 Criminal Procedure Rules Committee 39 there is no arrest on your record. He proposes the same change to criminal traffic cases. Judge Dempsey asked if the State Attorney in his area is going to trial without filing an information. Mr. Getty was unsure. Judge Bergosh asked at what point in the process Mr. Getty thinks the NTA should be replaced with an information? Before arraignment?
Mr. Swartz cited State v Critzer, 381 So. 2d 301 (Fla. 5th 1980). Mr. Getty suggested that the rules now allow for LEOs to effectively practice law. Judge Dempsey disagreed. Judge Bergosh suggested that an NTA is the LEO saying to the defendant “you look trustworthy and will show up” so there is no reason to take you to booking. Mr. Tannebaum brought up that citations for reckless driving, or for knowingly driving with a suspended license, are the equivalent of an NTA.
Mr. Fagan has an issue with a docket entry/charging decision being made by someone other than the grand jury or state attorney. A LEOs standard is whether there is probable cause, while the state attorney has a higher standard. Mr. Swartz pointed out that the State Attorney makes a choice whether to amend or change the NTA when moving forward. Mr. Stewart agreed that in his office, both NTAs and arrests are reviewed on the same bases before moving forward.
Heather Telfer asked if NTA was statutory in nature and therefore substantive and not procedural in nature. She was assured that NTA is strictly rule-based.
Mr. Duncan moved to decline to amend. Mr. Swartz seconded the motion.
Ms. Van Ness asked for a change so that an NTA doesn’t equal an arrest. Mr. Swartz pointed out that the NTA operates in lieu of booking and that such an amendment would negate the authority of the LEO to issue an NTA.
Judge Dempsey moved to end debate. Mr. Duncan seconded the motion.
The original motion to take no action in response to this request for amendment was approved by a vote of 9-0.
The Subcommittee Chair is prepared to report to the full Committee at the meeting on June 28, 2019.
Hon. Angela Dempsey Subcommittee Chair
cc: Committee Chair Committee Secretary The Florida Bar Liaison
2 June 28, 2019 Criminal Procedure Rules Committee 40
3 June 28, 2019 Criminal Procedure Rules Committee 41 From: Varinia Van Ness
Heather, below is a referral I just got from a lawyer in Sarasota.
Varinia Van Ness, Esq. Van Ness Law Group, P.A. 941.362.3560
Sent from my iPad Pro
Begin forwarded message:
Date: April 12, 2019 at 8:16:49 AM EDT To: Varinia Van Ness
Varinia,
I am respectfully requesting that you bring the following proposal to the rules committee: Eliminate the authority which makes a "Notice To Appear" a valid charging document.
Law enforcement officers make arrests, and only the State Attorney's office should make a filing decision.
This is the way it should be. If police make a bad arrest, the State Attorney should decline to file charges.
If Law Enforcement Officers can make arrests and file charges, they are effectually practicing law as that decision should be made solely by the local state attorney's office.
That's how it works for all felony charges because a felony cannot be charged by NTA.
HOWEVER, for some reason, misdemeanor charges can be initiated by law enforcement officers by the issuance of a "notice to appear." The collateral consequences of a misdemeanor charge are harsh and severe. The decision to file criminal charges should rest solely with the local state attorney's office and not the arresting officer.
When officers issue a NTA instead of seeking an arrest warrant (which they could have done), that would have been them filing charges on someone. If a State attorney then decides to not go forward with the charges on the NTA, if a person were to be asked if charges were filed against you, the honest answer has to be yes, and that is not right.
June 28, 2019 Criminal Procedure Rules Committee 42
The opposition is not about the issuance of a notice to appear in lieu of a physical arrest. The opposition is to the concept that a NTA is also tantamount to an "information" or charging document.
There are two rules at play here...3.134 and 3.140
I have enclosed them both.
Even the supreme court, when creating the rules, seemed to throw their hands up with the methods of charges for prosecution...look at the language "by whatever documents constitute a formal charge."
Rule 3.134 Time for Filing Formal Charges The state shall file formal charges on defendants in custody by information, or indictment, or in the case of alleged misdemeanors by whatever documents constitute a formal charge, within 30 days from the date on which defendants are arrested or from the date of the service of capiases upon them. If the defendants remain uncharged, the court on the 30th day and with notice to the state shall:
(1) Order that the defendants automatically be released on their own recognizance on the 33rd day unless the state files formal charges by that date; or
(2) If good cause is shown by the state, order that the defendants automatically be released on their own recognizance on the 40th day unless the state files formal charges by that date.
In no event shall any defendants remain in custody beyond 40 days unless they have been formally charged with a crime.
Rule 3.140 Indictments; Informations (a) Methods of Prosecution.
(1) Capital Crimes. An offense that may be punished by death shall be prosecuted by indictment.
(2) Other Crimes. The prosecution of all other criminal offenses shall be as follows:
June 28, 2019 Criminal Procedure Rules Committee 43 In circuit courts and county courts, prosecution shall be solely by indictment or information, except that prosecution in county courts for violations of municipal ordinances and metropolitan county ordinances may be by affidavit or docket entries and prosecutions for misdemeanors, municipal ordinances, and county ordinances may be by notice to appear issued and served pursuant to rule 3.125. A grand jury may indict for any offense. When a grand jury returns an indictment for an offense not triable in the circuit court, the circuit judge shall either issue a summons returnable in the county court or shall bail the accused for trial in the county court, and the judge, or at the judge’s direction, the clerk of the circuit court, shall certify the indictment and file it in the records of the county court.
(b) Nature of Indictment or Information. The indictment or information on which the defendant is to be tried shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged.
June 28, 2019 Criminal Procedure Rules Committee 44 381 So.2d 301 District Court of Appeal of Florida, Fifth District. STATE of Florida, Petitioner, v. David Scott CRITZER, Respondent. No. 79-115. March 12, 1980.Rehearing Denied March 28, 1980. Synopsis The Circuit Court of the Ninth Judicial Circuit affirmed a County Court's order dismissing State's notice to appear which had charged defendant with petit theft. State petitioned for writ of common-law certiorari. The District Court of Appeal, Cobb, J., held that notice to appear, which named misdemeanor offense, statute number and included narrative which was sufficiently detailed to enable defendant to prepare defense without being embarrassed, was sufficient. Writ granted; order vacated; cause remanded with directions.
1Indictment and Information
Enabling Accused to Prepare for Trial Notice to appear, which named misdemeanor offense, statute number and included narrative which was sufficiently detailed to enable defendant to prepare defense without being embarrassed, was sufficient. 33 West's F.S.A. Rules of Criminal Procedure, rule 3.125(g). 2Indictment and Information
Formal Requisites of Complaint or Affidavit Notices to appear issued under field conditions by law enforcement officers are not held to same strict standards as are indictments and informations. 33 West's F.S.A. Rules of Criminal Procedure, rule 3.125(g). Attorneys and Law Firms *301 Steven Wallace, Asst. State's Atty., and Lawrence A. Kaden, Staff Legal Asst., Orlando, for petitioner. *302 H. Scott Gold, Asst. Public Defender, Orlando, for respondent. Opinion COBB, Judge.
June 28, 2019 Criminal Procedure Rules Committee 45 The state petitions this Court to issue a writ of common law certiorari to review a final order of the circuit court of the Ninth Judicial Circuit sitting in its review capacity. The circuit court affirmed a county court's order dismissing the state's Notice to Appear which had charged defendant with petit theft in violation of Section 812.014, Florida Statutes (1977). The county court stated that the Notice to Appear failed to state the essential elements of the crime of petit theft. 1We find that the notice to appear was sufficient to inform the defendant of the nature of the offense charged. Compare, Martinez v. State, 368 So.2d 338 (Fla.1978). 2We doubt that the legislature and Florida Supreme Court intended Notices to Appear issued under field conditions by law enforcement officers to be held to the same strict standards as are indictments and informations. Prosecution of misdemeanors by Notices to Appear is given a special section in the Rules of Criminal Procedure,1 as is prosecution in county court for violation of ordinances by affidavit or docket entries. See McElroy v. Brown, 311 So.2d 786 (Fla. 4th DCA 1975), cert. denied, 319 So.2d 30 (Fla.1975). Moreover, Rule 3.125(g) specifically lists what is required to appear in a valid notice to appear. The Notice to Appear sub judice named the offense, the statute number, and included a narrative which was sufficiently detailed to enable the defendant to prepare a defense without being embarrassed. The requirements of Rule 3.125(g) were satisfied. See The Florida Bar. Re Florida Rules of Criminal Procedure, 343 So.2d 1247 (Fla.1977); In re Clarification of Florida Rules of Practice and Procedure (Florida Constitution, Art. V, s 2(a)), 281 So.2d 204 (Fla.1973). For these reasons, the petition for writ of certiorari is granted; the order of the circuit court is vacated and the cause is remanded with directions to the circuit court to vacate the order of the county court and remand with directions to reinstate the notice to appear. It is so ordered. CROSS and ORFINGER, JJ., concur All Citations 381 So.2d 301
1 See Rules 3.125, 3.140(a)(2), Fla.R.Crim.P.
June 28, 2019 Criminal Procedure Rules Committee 46 The 2018 Florida Statutes Title XLVII: CRIMINAL PROCEDURE AND CORRECTIONS Chapter 901: ARRESTS 901.28 Notice to appear for misdemeanors or violations of municipal or county ordinances; effect on authority to conduct search.—The issuance of a notice to appear shall not be construed to affect a law enforcement officer’s authority to conduct an otherwise lawful search, as provided by law. History.—s. 1, ch. 73-27; s. 7, ch. 85-77.
June 28, 2019 Criminal Procedure Rules Committee 47 THE FLORIDA BAR CRIMINAL PROCEDURE RULES COMMITTEE
SUBCOMMITTEE ACTION REPORT
TO: Sheila Loizos
FROM: Hunter Chamberlin
Please be advised that Subcommittee II conducted a meeting on May 31, 2019, by conference call to discuss docket numbers 19-06-II and 19-08-II.
Subcommittee attendance was as follows:
Member Name Present Not Present Hunter Chamberlin, Chair X Hon. Wendy Berger X Ronald Dente, Jr. X Adrienne Ellis X Shaquana Harper X Hon. Richard Hersch X Bonita Jones Peabody X Robert Scavone X Hon. Michelle Sisco X Brian Tannebaum X
Additional participants included: Sheila Loizos, Chair Heather Telfer, Bar Liaison
The Subcommittee took the following action: (19-06-II) 1. Determined that the submission is within the scope of Subcommittee authority. YES
2. Made the following work assignments: N/A
3. Made the following decisions: To amend Rule 3.212(d)
4. In Jackson v. Indiana, 406 U.S. 715 (1972) the United States Supreme Court considered a case involving a defendant who was neither competent to proceed nor likely to become competent in the foreseeable future. The question presented, therefore, was what to do with that individual.
1 June 28, 2019 Criminal Procedure Rules Committee 48 The Supreme Court reaffirmed that an individual who has been determined to be incompetent to proceed can only be held so long as it takes to determine if there is a substantial probability that the individual may be restored to competency in the near future. If that question is answered in the negative, the Court held that “the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant.” Jackson, at 738.
Florida Rule of Criminal Procedure 3.212 runs afoul of that holding. It provides that an individual who is not competent to proceed and not likely to become competent in the foreseeable future may be released “with appropriate conditions.” In permitting the imposition of “special conditions” on a non-restorable defendant as a condition of release, the rule plainly exceeds what is permitted in Jackson.
Consequently, in Schofield v. Judd, No. 2D18-4827 (2d DCA, 2019) the Second District Court of Appeal applied the ruling in Jackson to bring Florida’s rule in line with the U.S. Supreme Court’s Jackson ruling. The Court held that
If an incompetent defendant cannot be restored to competency in the reasonably foreseeable future, the State can either institute a civil commitment proceeding or it can release the defendant. It is an either-or proposition. There is no third alternative that can be derived from Jackson on this point because the Court's direction to "release the defendant" does not brook anything besides an unconditional release.
Id., at p. 11. The proposed amendment seeks to conform the rule to the holdings in Jackson and Schofield.
5. Attach the proposed amendments in legislative format, using strikethrough and underline (do not use track changes) in Microsoft Word or Corel Wordperfect format, or as an ADA-compliant PDF. RULE 3.212. COMPETENCE TO PROCEED: HEARING AND DISPOSITION
(a)-(c) [No change]
(d) Release on Finding of Incompetence. If the court decides that a defendant is not mentally competent to proceed and there is no substantial probability that the defendant would gain competency to proceed in the foreseeable future, but does not meet the criteria for commitment, the defendant maymust be released on appropriate release conditions. The court may order that the defendant receive outpatient treatment at an appropriate
2 June 28, 2019 Criminal Procedure Rules Committee 49 local facility and that the defendant report for further evaluation at specified times during the release period as conditions of release. A report shall be filed with the court after each evaluation by the persons appointed by the court to make such evaluations, with copies to all parties. The procedure for determinations of the confidential status of reports is governed by Rule of Judicial Administration 2.420.
Committee Notes [No change]
(19-08-II) 1. Determined that the submission is within the scope of Subcommittee authority. YES
2. Made the following work assignments: N/A
3. Made the following decisions: Not to amend Rule 3.210 as suggested by Judge Mirman.
4. In the subcommittee’s belief and experience, to the extent the issues raised in the referral do arise, they did so very infrequently. As such, the subcommittee opined that those issues, to the extent they were issues, didn’t warrant the proposed rule change. The subcommittee felt that the proposed amendment had the potential to create complications rather than reduce them. Therefore, the subcommittee declined to take any action on the referral.
The Subcommittee Chair is prepared to report to the full Committee at the meeting on June 28, 2019.
Hunter Chamberlin Subcommittee Chair
cc: Committee Chair Committee Secretary The Florida Bar Liaison
3 June 28, 2019 Criminal Procedure Rules Committee 50 NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
CHRISTOPHER SCHOFIELD, ) ) Petitioner, ) ) v. ) Case No. 2D18-4827 ) GRADY C. JUDD, Sheriff of Polk County ) ) Respondent. ) ______)
Opinion filed April 3, 2019.
Petition for Writ of Habeas Corpus to the Circuit Court for Polk County; J. Kevin Abdoney, Judge.
Howard L. Dimmig, II, Public Defender, Robert Young, General Counsel, and Scott Toliver, Assistant Public Defender, Bartow, for Petitioner.
Ashley Moody, Attorney General, Tallahassee, and Cynthia Richards, Assistant Attorney General, Tampa, for Respondent.
Peter P. Sleasman and Kristen Cooley Lentz, Gainesville, for Amicus Curiae Disability Rights Florida.
LUCAS, Judge.
June 28, 2019 Criminal Procedure Rules Committee 51 Christopher Schofield has filed a petition for a writ of habeas corpus and
writ of certiorari challenging his continued detention in the Polk County jail for violating
conditions imposed by the circuit court ostensibly under Florida Rule of Criminal
Procedure 3.212(d). We previously granted Mr. Schofield's habeas petition by an
unpublished order on January 24, 2019. This opinion explains why we so ruled.
I.
On December 12, 2015, Mr. Schofield was seen on Park Street in
Lakeland selling the contents of an apartment. When asked by a Lakeland police officer
how he had obtained access to the locked, vacant apartment complex, Mr. Schofield
responded that he had purchased (or was in the process of purchasing) the entire
complex from a woman he could only describe as "Mrs. Mary." He could not take the
officer to meet Mrs. Mary, Mr. Schofield claimed, because he never traveled by roads to
reach her residence. After making contact with the actual owner of the apartment
complex, the officer arrested Mr. Schofield. He was eventually charged with burglary of
an unoccupied dwelling, violation of a permanent domestic violence injunction,1 and
failure to register as a career offender.
Mr. Schofield's appointed counsel filed a motion to have Mr. Schofield's
competence evaluated. After receiving a report and evaluation from a court-appointed
expert, the circuit court entered an order on April 13, 2016, adjudicating Mr. Schofield
incompetent to proceed. Pursuant to section 916.13(1), Florida Statutes (2015), he was
1The protected individual under the permanent injunction was Mr. Schofield's mother, who, the officer determined, lived 129 feet from where Mr. Schofield was loitering. 2
June 28, 2019 Criminal Procedure Rules Committee 52 committed to the Department of Children and Families (DCF) for the purpose of
restoring his competency in the criminal case.
Mr. Schofield remained in a state hospital for approximately a year and a
half. On September 22, 2017, a letter cosigned by the state hospital's facility
administrator and its legal counsel was sent to the circuit court informing the presiding
judge that Mr. Schofield was unlikely to regain competency in the foreseeable future.
The letter further indicated that Mr. Schofield's "recovery team" was of the opinion that
he would meet the criteria for involuntary examination under section 394.463, Florida
Statutes (2016), of the Baker Act. The letter cited to Mosher v. State, 876 So. 2d 1230
(Fla. 1st DCA 2004), and suggested to the circuit court that "individuals whose
competence is non-restorable no longer meet the criteria for commitment pursuant to
[section 916.13, Florida Statutes (2017)] and therefore, should either be released or the
State shall initiate civil commitment proceedings."
Mr. Schofield then filed a "Motion to Dismiss Due to Being Incompetent
and Non-Restorable." The circuit court appointed another committee to evaluate Mr.
Schofield, received their reports, and held a hearing, but decided to deny Mr. Schofield's
motion because, according to the circuit court's order, five years had not yet elapsed
since the time Mr. Schofield had been found incompetent.2 However, the court did not initiate a Baker Act proceeding. Instead, on May 31, 2018, the circuit court entered an
"Order Granting Release Following Commitment," which released Mr. Schofield from
2This part of the court's order appears to be based upon section 916.145(1), Florida Statutes (2017): "The charges against a defendant adjudicated incompetent to proceed due to mental illness shall be dismissed without prejudice to the [S]tate if the defendant remains incompetent to proceed for 5 continuous, uninterrupted years after such determination . . . ." 3
June 28, 2019 Criminal Procedure Rules Committee 53 State custody but subject to ten court-monitored conditions. These conditions included prohibitions against possession of any weapons or ammunition, consumption of alcohol, or possession of controlled substances without a prescription. The order also required
Mr. Schofield to receive outpatient treatment at the Peace River Center, to "report for further evaluation at specified times during the release periods . . . as specified by the court," and to appear at subsequent court status hearings. In the order, the circuit court retained jurisdiction over Mr. Schofield and scheduled a status conference for
November 19, 2018.
When Mr. Schofield failed to appear for the November 19 status conference, the circuit court issued a capias warrant for Mr. Schofield's arrest. Ten days later Mr. Schofield was brought before the court. During that hearing, the State informed the circuit court that not only had Mr. Schofield violated the court's release conditions, he had also been arrested for trespass and for violating an injunction order.
With respect to the case that was before the court—which, again, Mr. Schofield had already been found incompetent and nonrestorable to proceed under—the presiding judge expressed some understandable frustration:
THE COURT: [I] don't know what to do with him. I mean these cases sort of revert to pretrial release cases rather than commitment cases, meaning those rules govern what I'm supposed to do. The pretrial release rules, I should say. But then he remains incompetent, so he sits and rots in the jail, because he's committing new crimes while under orders of essentially pretrial release.
. . . .
MR. TOLLIVER [counsel for Mr. Schofield]: And the idea that he's incompetent, I mean he couldn't resolve those cases if he chose to. He couldn't go to trial if he chose to. There's nothing he can do to resolve everything and release himself from jail to move forward in these cases. 4
June 28, 2019 Criminal Procedure Rules Committee 54 We're — the way that the law is written for competency with this whole five day — five years and you can't move to dismiss prior to kind of leaves everyone's hands tied.
THE COURT: So maybe I should test it and just hold him in jail and leave it up to you to get the right rulings that are needed for these types of cases from a higher court.
I don't know what else to do, Mr. Tolliver, other than to hold him without bail having violated not only a condition of his release, but having committed a new crime while released . . . .
I don't know what else to do, and I would be happy to have some guidance as to what to do, because, you know, DCF is not going to pay for him anymore, because he doesn't meet the criteria. So . . . they can't help us find some residential placement for him where we can have some assurances that he's not going to be violating orders of the Court —
MR. TOLLIVER: Well, Your Honor —
THE COURT: — until the State is either willing to dismiss these charges or the time comes to dismiss the charges.
MR. TOLLIVER: There are mechanisms available to the State if they chose to go [that] route, they could.
THE COURT: Well, but they're the same . . . I assume you're talking about civil commitment.
MR. TOLLIVER: Correct.
THE COURT: The standard is the same. The criteria for civil commitment is identical to the criteria for commitment [for restoration under section 916.13]. So they could never prove that case if they sought civil commitment. . . . So I guarantee you if he were Baker Acted, he might be held for a few days or a few weeks, but then would be released without any civil commitment to follow because he doesn't respond to treatment.
MR. TOLLIVER: Well, I just — to make my record clear for the record is that it's our position that he ought to be released, because he has no ability to — he's incompetent 5
June 28, 2019 Criminal Procedure Rules Committee 55 and he has no ability to be restored which has been previously determined.
The court disagreed and ruled that Mr. Schofield would be held in jail without bond for
violating a condition in the May 31 order.3 Mr. Schofield now challenges that detention in the petition before us.
II.
"The purpose of the ancient and high prerogative writ of habeas corpus is to inquire into the legality of a prisoner's present detention." McCrae v. Wainwright, 439
So. 2d 868, 870 (Fla. 1983). Habeas corpus is an appropriate and frequently invoked remedy to challenge the legality of a petitioner's pretrial detention or restraint. See
Bush v. State, 74 So. 3d 130, 133 (Fla. 1st DCA 2011); Schwartz v. Neumann, 731 So.
2d 746, 747 (Fla. 4th DCA 1999).4
3The circuit court found that the commission of a new crime while released constituted a violation of a condition of the May 31 order. Technically, the court's order did not include a condition that prohibited committing or being arrested for allegedly committing criminal offenses. The point is technical because the capias warrant that preceded Mr. Schofield's detention was based on his failure to appear at a noticed status hearing, which was a condition of the May 31 order. Cf. Anglin v. Mayo, 88 So. 2d 918, 919-20 (Fla. 1956) ("If it appears to a court of competent jurisdiction that a man is being illegally restrained of his liberty, it is the responsibility of the court to brush aside formal technicalities and issue such appropriate orders as will do justice. In habeas corpus the niceties of the procedure are not anywhere near as important as the determination of the ultimate question as to the legality of the restraint.").
4Challenges to civil commitment orders are frequently considered through certiorari. See In re Commitment of Reilly, 970 So. 2d 453, 455 (Fla. 2d DCA 2007); Oren v. Judd, 940 So. 2d 1271, 1272 (Fla. 2d DCA 2006) (citing Patton v. State, 712 So. 2d 1206 (Fla. 1st DCA 1998)); Dep't of Children & Families v. Clem, 903 So. 2d 1011, 1012 (Fla. 5th DCA 2005); M.H. v. State, 901 So. 2d 197, 198 (Fla. 4th DCA 2005); Mosher v. State, 876 So. 2d at 1231; accord Horton v. Judd, 80 So. 3d 439, 439 n.1 (Fla. 2d DCA 2012) (noting that typically commitment orders are reviewed in certiorari, but "[a] challenge to an order of the trial court improperly committing a defendant for the purpose of restoring his competency may, however, be raised in a habeas proceeding" (citing Graham v. Jenne, 837 So. 2d 554, 555 (Fla. 4th DCA 2003))). We elect to proceed in habeas here because Mr. Schofield's petition emanates 6
June 28, 2019 Criminal Procedure Rules Committee 56 A.
"It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial." Drope v. Missouri, 420 U.S. 162, 171 (1975). This prohibition, which goes back to the time of Blackstone, "is fundamental to an adversary system of justice." Id. at 172. Thus, a criminal prosecution may not proceed against a defendant who has been found incompetent. See McCray v. State, 71 So. 3d 848, 862 (Fla. 2011)
("It is well-settled that a criminal prosecution may not move forward at any material stage of a criminal proceeding against a defendant who is incompetent to proceed."
(quoting Caraballo v. State, 39 So. 3d 1234, 1252 (Fla. 2010))); Hayes v. State, 343 So.
2d 672, 672 (Fla. 2d DCA 1977) ("The common-law rule which has long been recognized in Florida is that 'if at any time while [c]riminal proceedings are pending against a person accused of crime, whether before or during or after the trial, the trial court . . . has facts brought to its attention which raise a doubt of the sanity of the
Defendant, the question should be settled before further steps are taken.' " (second alteration in original) (quoting Brown v. State, 245 So. 2d 68, 70 (Fla. 1971))); see also
Fla. R. Crim. P. 3.210(a) ("A person accused of an offense . . . who is mentally incompetent to proceed at any material stage of a criminal proceeding shall not be
from his incarceration (as opposed to civil commitment) for allegedly violating a condition of release under rule 3.212(d). See Bronson v. State, 89 So. 3d 1089, 1089 (Fla. 5th DCA 2012) (granting habeas relief to release petitioner from county jail where he had been found incompetent to proceed and there was "little or no probability that his competency will be restored in the future"). Because our consideration in habeas fully resolves the issues presented and grants all the relief Mr. Schofield has requested, we need not consider his alternative petition for certiorari and dismiss it as moot. 7
June 28, 2019 Criminal Procedure Rules Committee 57 proceeded against while incompetent."). Florida statutes now codify the substantive inquiries that underlie a competency determination. See generally § 916.12.
Florida statutes also provide a mechanism through which an incompetent defendant may be committed and provided treatment for the purpose of restoring his or her competency. See § 916.13. That commitment procedure is subject to an important limitation, as we explained in Department of Children & Family Services v. Barnett, 124
So. 3d 430, 432-33 (Fla. 2d DCA 2013):
[T]he court may commit a defendant only if that defendant "meets the criteria for involuntary commitment to the [D]epartment [of Children and Families] under the provisions of this chapter." § 916.13(2). Those criteria include that there be "a substantial probability that the mental illness causing the defendant's incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future." § 916.13(1)(c). . . . A court that commits a defendant in { "pageset": "S40 violation of these statutory requirements improperly encroaches on the legislature's authority to prescribe the limits of an agency's obligations and on an agency's obligation to expend its appropriated funds in accordance with the laws governing that agency. Moreover, doing so violates the rules of procedure promulgated by the supreme court, which provide that a court may commit a defendant for treatment only if "the defendant meets the criteria for commitment as set forth by statute." Fla. R. Crim. P. 3.212(c)(3)(A).
(Emphasis and citations omitted.)
As an alternative to residential commitment, section 916.17 authorizes a form of "conditional release," under the continuing supervision of the trial court, in which the incompetent defendant may receive treatment outside the confines of a section
916.13 residential commitment—but, here as well, only if the incompetent defendant would otherwise meet the criteria for commitment, which includes the "substantial
8
June 28, 2019 Criminal Procedure Rules Committee 58 probability" that the defendant "will regain competency to proceed in the reasonably foreseeable future." § 916.13(1)(c); see also Dep't of Children & Families v. Carmona,
159 So. 3d 165, 167 (Fla. 2d DCA 2015); Dep't of Children & Families v. C.Z., 201 So.
3d 78, 83 (Fla. 3d DCA 2015). If, after residential commitment or conditional release, the defendant is found ineligible to remain in the DCF's custody because there is no reasonable prospect that the defendant's competency can be restored in the foreseeable future, then the question the circuit judge raised during Mr. Schofield's hearing—what should be done with the defendant—necessarily arises.
B.
The United States Supreme Court answered that question in Jackson v.
Indiana, 406 U.S. 715 (1972). In Jackson, a criminal defendant who was deaf, mute, and operated at the "mental level of a pre-school child" was found incompetent to proceed in his prosecution for robbery. Id. at 717. Although the examining experts opined that the defendant was almost assuredly incapable of ever being able to assist in his defense, the trial court committed him indefinitely to a state hospital for treatment.
Id. at 719. In reversing the Indiana Supreme Court's affirmance of that order, the
Jackson Court held
that a person charged by a [s]tate with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.
Id. at 738. "If," the Supreme Court continued, "it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that
9
June 28, 2019 Criminal Procedure Rules Committee 59 would be required to commit indefinitely any other citizen, or release the defendant." Id.
(emphasis added).
Florida's district courts of appeal, including ours, have repeated this
instruction to our state's trial courts. For example, in Mosher, 876 So. 2d at 1232, the
First District granted a petition for certiorari challenging the continued detention of a
defendant accused of aggravated battery who had been found incompetent to proceed
due to her schizophrenia. The trial court in Mosher had refused to release the
defendant from involuntary commitment in spite of the fact that she did not meet the
criteria for commitment under section 916.13(1) because it was "extremely unlikely" she
could have her competency restored in the foreseeable future. Id. at 1231. After
quoting the language of the Jackson opinion referenced above, the First District
concluded: "Therefore, pursuant to Jackson, the State must either institute civil commitment proceedings or release her." Id. at 1232 (footnote omitted).
Our court, in turn, quoted Mosher in Oren v. Judd, 940 So. 2d 1271, 1273-
74 (Fla. 2d DCA 2006):
In the present case, the circuit court did not find that there was a substantial probability that Oren's mental deficiencies would respond to treatment and that he would regain competency to proceed in the near future. Indeed, there was no evidence—let alone clear and convincing evidence—presented at the competency hearing establishing a probability that Oren would regain competency. To the contrary, it was established that Oren would never regain competency. Clearly, then, Oren's involuntary commitment was not authorized by section 916.13(1).
. . . .
The [Mosher] court noted that at the hearing on Mosher's motion it was determined that there was no substantial probability that she would regain competency to 10
June 28, 2019 Criminal Procedure Rules Committee 60 proceed in the reasonably foreseeable future. Therefore, she no longer met the criteria for involuntary commitment under section 916.13(1)(c). For that reason, the court held, the State must institute civil commitment proceedings or Mosher must be released. The facts in the present case compel the same result.
See also Bronson v. State, 89 So. 3d 1089, 1090 (Fla. 5th DCA 2012) ("According to the medical evidence, there is little chance that Petitioner will be restored to competency due to his cognitive deficits resulting from his stroke; therefore, he must be civilly committed or released from custody." (citing Roddenberry v. State, 898 So. 2d
1070, 1073 (Fla. 5th DCA 2005); Oren, 940 So. 2d 1271; Mosher, 876 So. 2d at 1230));
Dep't of Children & Families v. Gilliland, 947 So. 2d 1262, 1263 (Fla. 5th DCA 2007)
(quashing trial court's order of continued commitment where the petitioner suffered from dementia and there was little or no probability that she would become competent in the future: "As the court explained in Oren, the State will have to institute civil commitment proceedings or Gilliland will have to be released").
We read the instruction in Jackson, repeated numerous times in Florida's jurisprudence, as clear and unequivocal. If an incompetent defendant cannot be restored to competency in the reasonably foreseeable future, the State can either institute a civil commitment proceeding or it can release the defendant. It is an either-or proposition. There is no third alternative that can be derived from Jackson on this point because the Court's direction to "release the defendant" does not brook anything besides an unconditional release.
C.
Having said that, we must acknowledge some confusion may have arisen in recent years. The source of which appears to be a procedural rule that does not
11
June 28, 2019 Criminal Procedure Rules Committee 61 account for Jackson's holding and three published opinions' citations to that rule. In
Graham v. Jenne, 837 So. 2d 554, 559 (Fla. 4th DCA 2003), the Fourth District granted
an incompetent, nonrestorable defendant's petition for writ of habeas corpus but then, at
the conclusion of the opinion, offered the following suggestion (in what appears to be
dicta):
Graham is incompetent to proceed to trial because he is a deaf mute and his sign language skills do not include legal terms required for him to either enter a plea or proceed to trial. He does not meet the requirements of Chapter 916 for involuntary commitment to DCF. However, Florida Rule of Criminal Procedure 3.212 provides other options. . . . Rule 3.212(d) allows a court to order appropriate release conditions for up to a year, including outpatient treatment at an appropriate local facility and reporting for further evaluation, if a defendant is not mentally competent but does not meet the criteria for commitment.
This is the first instance we have found in Florida law where rule 3.212(d) is mentioned
as a viable means for a circuit court to retain jurisdiction over and order "evaluation" (for
whatever unidentified benchmark) of a nonrestorable, incompetent defendant.5 Neither the rule, the rule's commentary, nor the Jenne opinion mention the Supreme Court's holding in Jackson or any Florida court opinion applying Jackson.
5Rule 3.212(d) provides, in pertinent part:
If the court decides that a defendant is not mentally competent to proceed but does not meet the criteria for commitment, the defendant may be released on appropriate release conditions. The court may order that the defendant receive outpatient treatment at an appropriate local facility and that the defendant report for further evaluation at specified times during the release period as conditions of release. A report shall be filed with the court after each evaluation by the persons appointed by the court to make such evaluations, with copies to all parties. 12
June 28, 2019 Criminal Procedure Rules Committee 62 Six years later, in Abreu-Gutierrez v. James, 1 So. 3d 262, 265 (Fla. 4th
DCA 2009), a criminal defendant who had spent three years vacillating between competency and incompetency (in a state hospital and jail) filed a pro se petition for writ of habeas corpus with the circuit court challenging his continued commitment. Faced with conflicting evidence about the petitioner's competency and overall mental health, the Fourth District observed that because the lower court did not find by clear and convincing evidence that a substantial probability existed that he could be restored to competency in the foreseeable future, Abreu's commitment "may be unlawful." Id. at
266. But, the Abreu court concluded, the proper method to challenge a nonfinal order of commitment would be through a certiorari petition, and so it affirmed the denial of his habeas petition. Id. at 266-67. The court in Abreu then instructed the trial court to hold another hearing within thirty days from the date of the appeal's mandate "to consider
Abreu's competency and his qualification for continued commitment." Id. at 267. Abreu concluded with these final instructions:
If Abreu's condition cannot be treated and he cannot be restored to competency, the state must initiate civil commitment proceedings pursuant to the Baker Act, or other pertinent statutes, or Abreu must be released. See Mosher, 876 So.2d at 1232. If the trial court orders release, it should be based on appropriate conditions which should include monitoring and outpatient treatment. See Fla. R. Crim. P. 3.212(d).
Id. (emphasis added). Here as well, an unelaborated citation to rule 3.212(d) appears to be the sole basis for the suggestion to the circuit court that it could impose court- monitored conditions on the defendant's release if the defendant could not be restored to competency.
13
June 28, 2019 Criminal Procedure Rules Committee 63 Later that same year, in Department of Children & Family Services v.
Amaya, 10 So. 3d 152, 157 (Fla. 4th DCA 2009), the court reframed the suggestion in
Abreu into a positive statement of the law: "The proper course when an incompetent
defendant does not meet the criteria for commitment, and cannot be restored to
competency, is for the State to initiate civil commitment proceedings under the Baker
Act or for the court to release the defendant 'on appropriate conditions' as provided in
Rule 3.212(d)." (citing Abreu, 1 So. 3d at 267; Gilliland, 947 So. 2d at 1263; Oren, 940
So. 2d at 1274; Mosher, 876 So. 2d at 1232).6
Since then, the implicit reformulation of Jackson's holding has been
carried along in Florida law, intermittently and in differing variations, when an
incompetent defendant who is ineligible for commitment under section 916.13
challenges his or her continued commitment. Compare Martire v. Gualtieri, 244 So. 3d
233, 233 (Fla. 2d DCA 2018) ("Should the trial court find that there is not a substantial
probability that the petitioner will attain competency in the foreseeable future, the trial
court shall release the petitioner under appropriate conditions pursuant to Florida Rule
of Criminal Procedure 3.212(d) if the State does not initiate involuntary civil commitment
proceedings."); State v. Spuhler, 243 So. 3d 1029, 1031-32 (Fla. 2d DCA 2018)
(denying State's certiorari petition to require imposition of conditional release and
holding that "[i]t is within the trial court's discretion" to impose conditions under rule
3.212(d)); McCray v. State, 230 So. 3d 495, 497 (Fla. 2d DCA 2017) ("In Mr. McCray's
6The string citation to the latter three cases is curious since the only cited opinion that actually included the internal quotation or citation to rule 3.212(d) was Abreu. As discussed previously, Gilliland, Oren, and Mosher all held that the State's options were to either initiate a civil commitment proceeding or "release the defendant," with no mention of any court-ordered conditions. 14
June 28, 2019 Criminal Procedure Rules Committee 64 situation, '[t]he proper course when an incompetent defendant does not meet the criteria
for commitment, and cannot be restored to competency, is for the State to initiate civil
commitment proceedings under the Baker Act or for the court to release the defendant
on appropriate conditions as provided in Rule 3.212(d).' " (quoting Amaya, 10 So. 3d at
157)); and Barnett, 124 So. 3d at 433 ("If the court orders release, it should consider
whether appropriate conditions may again be lawfully imposed under rule 3.212(d).")
with Williams v. State, 256 So. 3d 954, 957 (Fla. 1st DCA 2018) ("At a hearing, the
State's evidence demonstrated that [Petitioner's] disorder would never improve and he
would never attain competency. It was error to find a substantial probability that
[Petitioner] would attain competency in the reasonably foreseeable future based on a
report making no such determination, particularly in the face of direct evidence to the
contrary. [Petitioner] must be civilly committed or released, and his charges
dismissed."); C.Z., 201 So. 3d at 83-84 (explaining that "[w]hen a defendant is found non-restorable to competency and, therefore, does not meet the criteria for commitment, the next step is either to initiate civil commitment under the 'Baker Act' or to release the defendant" and remarking that "Florida Rule of Criminal Procedure
3.212(d) purports to create a short, safe harbor-like transition period before release, but only 'for a period not to exceed 1 year' " (emphasis added)); and Bronson, 89 So. 3d at
1090 (holding that incompetent defendant whose competency cannot be restored "must be civilly committed or released from custody").
For seven reasons, we do not believe any of these recent cases that have
modified Jackson's clear instruction are controlling. First, as we discussed earlier,
Jackson's holding on what the State may do when a defendant is found incompetent
and unlikely to become competent in the reasonably foreseeable future provided two, 15
June 28, 2019 Criminal Procedure Rules Committee 65 and only two, options. The insertion of a third alternative, a court-monitored conditional release, conflicts with an express holding of the U.S. Supreme Court on a point of constitutional interpretation and, therefore, cannot be considered authoritative on that point. See Armstrong v. Exceptional Child Ctr., Inc., 135 S.Ct. 1378, 1384 (2015)
(examining scope of the Supremacy Clause and observing "[f]or once a case or controversy properly comes before a court, judges are bound by federal law"); see also
Marshall v. Crosby, 911 So. 2d 1129, 1135 (Fla. 2005) ("[T]his Court relies on the
United States Supreme Court's admonition that lower courts should 'follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.' " (quoting Bottoson v. Moore, 833 So. 2d 693, 695 (Fla. 2002))). Second, any subsequent panel decision issued from our court that conflicts with our court's prior holding in Oren, 940 So. 2d at 1274 (which expressed Jackson's formulation), cannot be considered binding. See Wood v. Fraser, 677 So. 2d 15, 18 (Fla. 2d DCA 1996)
("[A]bsent an en banc opinion expressly receding from a point of law announced in previous opinions of this court, a trial court should not rely on the expressions of a three-judge panel as a basis to conclude that a previous opinion of another three-judge panel no longer carries the force of law."). Third, issues of constitutionality aside, there is no statutory authority to impose release conditions over a nonrestorable, incompetent defendant who is not eligible for commitment under section 916.13. Cf. Carmona, 159
So. 3d at 167 ("[T]he conditional release provisions of the statute and the rules implementing the statute indicate that conditional release under section 916.17 is appropriate only when a defendant meets the criteria for commitment to [DCF]."
(emphasis added) (quoting Amaya, 10 So. 3d at 156)). Fourth, therefore, rule 3.212(d) could not be applied in these cases because, as we pointed out in Barnett, 124 So. 3d 16
June 28, 2019 Criminal Procedure Rules Committee 66 at 433, "a court may commit a defendant for treatment only if 'the defendant meets the
criteria for commitment as set forth by statute.' " (quoting Fla. R. Crim. P.
3.212(c)(3)(A)). Fifth, if indeed rule 3.212(d) purports to confer the sweeping power
upon trial courts to impose conditions on a nonrestorable, incompetent defendant's right
to be released from custody,7 it would seem, as Mr. Schofield argues, to constitute a
violation of the separation of powers between the legislative and judicial branches. See
Boyd v. Becker, 627 So. 2d 481, 484 (Fla. 1993) ("While the Florida Constitution grants
this Court exclusive rule-making authority, this power is limited to rules governing
procedural matters and does not extend to substantive rights." (citing art. V, § 2(a), Fla.
Const.; Timmons v. Combs, 608 So. 2d 1 (Fla. 1992); Benyard v. Wainwright, 322 So.
2d 473 (Fla. 1975))); Hines v. State, 931 So. 2d 148, 150 (Fla. 1st DCA 2006) ("When a
statute confers a substantive right, a conflicting procedural rule is invalid as a violation
of separation of powers under article II, section 3 of the Florida Constitution because a
rule of procedure cannot enact substantive law."). And whatever may be said of the
vagaries between substantive and procedural law,8 state-sanctioned restraint on physical liberty must surely derive from substantive law. Cf. Adams v. Wright, 403 So.
2d 391, 394 (Fla. 1981) ("[S]ubstantive law includes those rules and principles which fix
7That does seem to have been the intent of the rule's drafters. In a committee note to the prior version of rule 3.212(d), it is stated: "This rule provides for the disposition of the defendant who falls under the third of the alternatives listed above, that he is incompetent to stand trial but does not meet the provisions for involuntary hospitalization. It is meant to provide as great a flexibility as possible for the trial judge in handling such defendant." See Committee note to Fla. R. Crim. P. 3.212, 1980 Adoption.
8Cf. Martin v. State, 43 Fla. L. Weekly D1016, D1017 (Fla. 2d DCA May 4, 2018) ("Discerning the precise contours between these distinctions [between substantive and procedural law] can occasionally pose a challenge"). 17
June 28, 2019 Criminal Procedure Rules Committee 67 and declare the primary rights of individuals as respects their persons and their property." (quoting In re Florida Rules of Criminal Procedure, 272 So. 2d 65, 66 (Fla.
1972) (Adkins, J., concurring))); State v. Garcia, 229 So. 2d 236, 238 (Fla. 1969)
("Substantive rights are those existing for their own sake and constituting the normal order of society, i.e., the rights of life, liberty, property[,] and reputation." (quoting In re
Gogabashvele's Estate, 195 Cal. Rptr. 77, 90 (Cal. Ct. App. 1961))). Sixth, the panel decisions that have authorized conditional release in these cases have never expressed a ratio decidendi for the anomaly it creates in settled jurisprudence—other than a rote citation to rule 3.212(d) or a prior opinion's citation to that rule. And finally, seventh, as a practical matter, we must note that the enforcement of release conditions in these cases is, for all intents and purposes, illusory. If a nonrestorable, incompetent defendant violates the terms of his or her conditional release, a trial court could neither lawfully punish the incompetent defendant for the violation, see McCray, 71 So. 3d at
862 ("[A] criminal prosecution may not move forward at any material stage of a criminal proceeding against a defendant who is incompetent to proceed." (quoting Caraballo, 39
So. 3d at 1252)), nor lawfully have the defendant committed to DCF under section
916.17, see C.Z., 201 So. 3d at 82-83 ("In our view, this subsection [of 916.17] does not and is not intended to create a separate statutory foundation for use by a trial court to order the Department [of Children and Families] to house and treat a mentally ill person who has been found non-restorable to competency to stand trial. . . . The [l]egislature has not established a mental health program or service for individuals in C.Z.'s situation."). Which is to say, a trial court could never meaningfully enforce the release conditions it imposes. Cf. Easter v. City of Orlando, 249 So. 3d 723, 731 (Fla. 5th DCA
2018) (quoting circuit judge's remarks that "the law surely does not require . . . 18
June 28, 2019 Criminal Procedure Rules Committee 68 pointless" or "fruitless action"). This trial court's attempt to navigate a better course for
enforcing its release conditions over Mr. Schofield, though perhaps understandable,
was no less unlawful.
III.
Consistent with Jackson, we once again hold that when a criminal defendant has been found incompetent to proceed and is not eligible for commitment pursuant to section 916.13 because there is no substantial probability that the defendant will regain competency in the reasonably foreseeable future, pursuant to
Jackson, the State must either institute civil commitment proceedings or release that defendant. See Oren, 940 So. 2d at 1273-74 (citing Mosher, 876 So. 2d at 1232).
Once the trial court determined that Mr. Schofield was incompetent and could not be restored to competency in the foreseeable future it had two choices: it could either initiate a Baker Act civil commitment proceeding, or it could release him—period. There was no lawful basis for the trial court to impose conditions on Mr. Schofield's release or to jail him for the violation of any of those conditions. Therefore, the petitioner is entitled to habeas relief.
Having so held, we will conclude with the observation we made in Barnett, which bears repeating here:
While we certainly sympathize with the trial court's frustrations and unwillingness to contribute to potential chaos, we note that the rule of law simply does not permit a trial court to fashion its own remedy in derogation of statutory limitations, and good intentions cannot expand the trial court's power in this regard. It is up to the legislature—not the trial court or this court—to close any gaps that may exist in the statutory scheme and to address the inadequacies of the existing law when applied to facts such as these.
19
June 28, 2019 Criminal Procedure Rules Committee 69 124 So. 3d at 433.
Petition granted.
KELLY and BADALAMENTI, JJ., Concur.
20
June 28, 2019 Criminal Procedure Rules Committee 70 From: Hunter Chamberlin
Hi, Heather.
In reading the opinion and the rule, it seems to me the current rule should be changed to:
If the court decides that a defendant is not mentally competent to proceed but does not meet the criteria for commitment, the defendant may must be released on appropriate release conditions.
June 28, 2019 Criminal Procedure Rules Committee 71 From: Judge Wendy W. Berger
Heather, I have attached an email from Judge Lawrence Mirman in the 19th Cir. He has a suggested rule change regarding competency hearings.
Wendy
Sent from my iPad
Begin forwarded message:
From: Lawrence Mirman
Hi Wendy, This is Lawrence Mirman, circuit judge from the 19th Judicial circuit. I saw that you are listed as vice chair of the criminal rules committee. https://www.floridabar.org/about/cmtes/cmte-cm220/ Because of ongoing problems we have had in our circuit with this issue, I quickly drafted a rough proposal to amend a rule of criminal procedure. Even though our judges and attorneys know the law in this area, because of the distractions involved in their practice, they often miss the need to have a mandated hearing on competency which is really often only a formality. This leads to remands and significant unnecessary judicial labor. I have a feeling that you, and many other judges, are familiar with this issue and the need for revision. I thought I should bring the matter to the committee’s attention. I hope all is well with you. I recall taking to you years ago about an unruly defendant that you had to muzzle! Please let me know if I can clarify anything regarding the need for a rule change below.
Rule 3.210. Incompetence to Proceed: Procedure for Raising the Issue Currentness
(a) Proceedings Barred during Incompetency. A person accused of an offense or a violation of probation or community control who is mentally
1 June 28, 2019 Criminal Procedure Rules Committee 72 incompetent to proceed at any material stage of a criminal proceeding shall not be proceeded against while incompetent.
(1) A “material stage of a criminal proceeding” shall include the trial of the case, pretrial hearings involving questions of fact on which the defendant might be expected to testify, entry of a plea, violation of probation or violation of community control proceedings, sentencing, hearings on issues regarding a defendant's failure to comply with court orders or conditions, or other matters where the mental competence of the defendant is necessary for a just resolution of the issues being considered. The terms “competent,” “competence,” “incompetent,” and “incompetence,” as used in rules 3.210-3.219, shall refer to mental competence or incompetence to proceed at a material stage of a criminal proceeding.
(2) The incompetence of the defendant shall not preclude such judicial action, hearings on motions of the parties, discovery proceedings, or other procedures that do not require the personal participation of the defendant.
(b) Motion for Examination. If, at any material stage of a criminal proceeding, the court of its own motion, or on motion of counsel for the defendant or for the state, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant's mental condition, which shall be held no later than 20 days after the date of the filing of the motion, and may order the defendant to be examined by no more than 3 experts, as needed, prior to the date of the hearing. Attorneys for the state and the defendant may be present at any examination ordered by the court. The expert(s) shall examine the Defendant within a reasonable time. After the examination is completed, the expert(s) shall file a report with the court, prosecutor and attorney for the Defendant stating the conclusion as to competency.
If the expert(s) concludes in the report that the Defendant is competent, the defendant shall be deemed competent without need of further court declaration. There shall be no hearing on the matter unless the attorney for the defendant requests a hearing, contesting the expert finding of competence. If no hearing is requested, the matter shall be deemed waived. If the expert(s) concludes in the report that the Defendant is incompetent there shall be no hearing on the matter unless the state attorney requests a hearing, contesting the expert finding of incompetence. The court shall conduct further
2 June 28, 2019 Criminal Procedure Rules Committee 73 proceedings pursuant to law regarding defendants found to be incompetent to stand trial. In the event of a conflict between the opinions of experts as reflected on their reports, the court must hold a hearing to resolve the conflict, unless there is a stipulation of the attorneys. If the Defendant is pro-se at the time the court orders an evaluation, the court must hold a hearing to determine competency after the expert(s) has filed a report.
(1) A written motion for the examination made by counsel for the defendant shall contain a certificate of counsel that the motion is made in good faith and on reasonable grounds to believe that the defendant is incompetent to proceed. To the extent that it does not invade the lawyer-client privilege, the motion shall contain a recital of the specific observations of and conversations with the defendant that have formed the basis for the motion.
(2) A written motion for the examination made by counsel for the state shall contain a certificate of counsel that the motion is made in good faith and on reasonable grounds to believe the defendant is incompetent to proceed and shall include a recital of the specific facts that have formed the basis for the motion, including a recitation of the observations of and statements of the defendant that have caused the state to file the motion.
(3) If the defendant has been released on bail or other release provision, the court may order the defendant to appear at a designated place for evaluation at a specific time as a condition of such release. If the court determines that the defendant will not submit to the evaluation or that the defendant is not likely to appear for the scheduled evaluation, the court may order the defendant taken into custody until the determination of the defendant's competency to proceed. A motion made for evaluation under this subdivision shall not otherwise affect the defendant's right to release.
(4) The order appointing experts shall:
(A) identify the purpose or purposes of the evaluation, including the nature of the material proceeding, and specify the area or areas of inquiry that should be addressed by the evaluator;
(B) specify the legal criteria to be applied; and
3 June 28, 2019 Criminal Procedure Rules Committee 74 (C) specify the date by which the report should be submitted and to whom the report should be submitted.
4 June 28, 2019 Criminal Procedure Rules Committee 75 THE FLORIDA BAR CRIMINAL PROCEDURE RULES COMMITTEE
SUBCOMMITTEE ACTION REPORT
TO: Sheila Loizos
FROM: Hunter Chamberlin
Please be advised that Subcommittee II conducted a meeting on March 14, 2019, by conference call to discuss docket number 18-14-II.
Subcommittee attendance was as follows:
Member Name Present Not Present Hunter Chamberlin, Chair X Hon. Wendy Berger X Ron Dente X Adrienne Ellis X Shaquana Harper X Hon. Richard Hersch X Bonita Jones Peabody X Robert Scavone X Hon. Michelle Sisco X Brian Tannebaum X
Additional participants included: Sheila Loizos, Chair Heather Telfer, Bar Liaison
The Subcommittee took the following action:
1. Determined that the submission is within the scope of Subcommittee authority. YES
2. Made the following work assignments: To have Heather let the Juvenile Court Rules Committee know what the Subcommittee decided.
3. Made the following decisions: Not to amend the Criminal Speedy Trial rule to have one 15-day timeframe as opposed to the 5-day and 10-day periods currently in use. The Subcommittee voted 6-0 not to amend the Criminal rule.
4. Prepared the attached written report.
1 June 28, 2019 Criminal Procedure Rules Committee 76 The subcommittee considered whether to amend the rule to have a single 15-day period, or to keep the rule as is, with separate 5-day and 10-day periods. After careful consideration by those present, the subcommittee decided that a single 15-day period was unworkable in the adult court system for one or more reasons. The primary concern with a single 15-day period pertained to complications that would arise regarding empaneling juries within the prescribed time period. Several members of the subcommittee noted that certain jurisdictions only convene jury panels one or two days a week. If a single 15-day time period were adopted, it might be difficult or impossible for the prosecution to empanel a jury within that time period based on when potential jurors are summoned. There was also a consensus that a single 15-day time period would increase the potential for speedy trial abuses, rather than a bona fide desire by the defendant to commence a trial within the prescribed time. Finally, the subcommittee questioned the necessity for consistency regarding the speedy trial rules for the criminal rules of procedure and the juvenile rules of procedure given the plethora of differences between those two court systems, including but not limited to the absence of jurors in the latter.
The Subcommittee Chair is prepared to report to the full Committee at the meeting on June 29, 2019.
Hunter Chamberlin Subcommittee II Chair
cc: Committee Chair Committee Secretary The Florida Bar Liaison
2 June 28, 2019 Criminal Procedure Rules Committee 77 Supreme Court of Florida
______
No. SC18-174 ______
IN RE: AMENDMENTS TO THE FLORIDA RULES OF JUVENILE PROCEDURE - 2018 REGULAR-CYCLE REPORT.
December 6, 2018
PER CURIAM.
We have for consideration The Florida Bar’s Juvenile Court Rules
Committee’s (JCR Committee) regular-cycle report of proposed amendments to the Florida Rules of Juvenile Procedure. See Fla. R. Jud. Admin. 2.140(b)(4).1
We adopt the majority of the unopposed proposals and either modify or decline to adopt, at this time, the two opposed proposals as well as several of the other proposed amendments.
BACKGROUND
The JCR Committee proposes amendments to Florida Rules of Juvenile
Procedure 8.005 (Ordering Children into Custody); 8.045 (Notice to Appear);
1. We have jurisdiction. See art. V, § 2(a), Fla. Const.
June 28, 2019 Criminal Procedure Rules Committee 78 8.060 (Discovery); 8.080 (Acceptance of Guilty or Nolo Contendere Plea); 8.085
(Prehearing Motions and Service); 8.090 (Speedy Trial); 8.100 (General Provisions for Hearings); 8.110 (Adjudicatory Hearings); 8.255 (General Provisions for
Hearings); 8.257 (General Magistrates); 8.320 (Providing Counsel to Parties);
8.425 (Permanency Hearings); and 8.435 (Reinstatement of Jurisdiction for Young
Adult); and forms 8.947 (Disposition Order—Delinquency); 8.964 (Dependency
Petition); 8.965 (Arraignment Order); and 8.991 (Final Order Dismissing Petition for Judicial Waiver of Parental Notice of Termination of Pregnancy). The
Committee also proposes adding new form 8.953 (Waiver of Rights), and deleting form 8.974 (Petition to Extend or Reinstate Court’s Jurisdiction). Consistent with rule 2.140(b)(2), the JCR Committee published its proposals for comment prior to filing them with the Court. The JCR Committee received one comment addressing a proposal not included in the Committee’s report. The Board of Governors of The
Florida Bar unanimously approved all the proposals.
The Court published the proposals for comment after they were filed. The
Civil Procedure Rules Committee (CivPR Committee) filed a comment with the
Court raising concerns about proposed new rule 8.255(e) (Taking Testimony), which addresses the use of communication equipment, suggesting that the JCR
Committee should coordinate its proposal with amendments to Florida Rule of
Judicial Administration 2.530 (Communication Equipment) and the civil rules
- 2 June 28, 2019 Criminal Procedure Rules Committee 79 currently being developed by the CivPR Committee and the Rules of Judicial
Administration Committee (RJA Committee). The JCR Committee filed a response declining to follow that suggestion.
After the comment period ended, the JCR Committee filed a notice of filing providing the Court with a comment by Robert Blaise Trettis, the Public Defender for the Eighteenth Judicial Circuit, addressing the proposed amendments to juvenile rule 8.080 (Acceptance of Guilty or Nolo Contendere Plea) that would title subdivision (c)(10) of that rule “Immigration Consequences” and require the court, when accepting a plea to a delinquency charge, to ensure that the child understands the potential immigration consequences of entering the plea. Mr.
Trettis pointed out that the Court had previously rejected substantially the same amendments to Florida Criminal Rule of Procedure 3.172 (Acceptance of Guilty or
Nolo Contendere Plea) in In re Amendments to the Florida Rules of Criminal
Procedure, 188 So. 3d 764, 766 (Fla. 2015). He therefore urged the JCR
Committee to withdraw its proposed amendments to the juvenile rule. The JCR
Committee declined to withdraw the proposed amendments.
In light of the issues raised in the comments concerning the proposed amendments to rule 8.080(c)(10) and proposed new rule 8.255(e), as well as the
Court’s unrelated concerns about the proposed amendments to rule 8.090(m)(3)
- 3 June 28, 2019 Criminal Procedure Rules Committee 80 (Remedy for Failure to Try Respondent Within the Specified Time), the Court held oral argument on those three proposals.
AMENDMENTS
After considering the proposed amendments, the comments submitted to the
JCR Committee and filed with the Court, and the JCR Committee’s responses, and having heard oral argument, we adopt the majority of the unopposed amendments as proposed. However, as explained below, we modify the proposed amendments to rule 8.080(c)(10) and proposed new form 8.953 to address only the “deportation consequences” of a juvenile entering a plea to a delinquency charge. We also decline to adopt, at this time, the proposed amendments to rule 8.090(m)(3) that would establish a single 15-day speedy trial recapture window, proposed new rule
8.255(e) addressing the use of communication equipment, and the related amendment to rule 8.257(d)(3).2 Instead, we direct the JCR Committee to coordinate its efforts as to those rule amendments with other Florida Bar rules committees, as explained below.
Modified and Rejected Proposals
2. We also make a minor technical change to form 8.991 (Final Order Dismissing Petition for Judicial Waiver of Parental Notice of Termination of Pregnancy).
- 4 June 28, 2019 Criminal Procedure Rules Committee 81 First, we decline to amend juvenile rule 8.080(c)(10) as proposed. That rule currently addresses the deportation consequences of a child entering a plea of guilty or nolo contendere to a delinquency change. The JCR Committee urges the
Court to amend the rule to address potential “immigration consequences” of a juvenile entering a plea. Instead, we modify the proposed amendments to the juvenile rule to address only “deportation consequences,” consistent with the
Court’s limitation of a similar proposal by the Criminal Procedure Rules
Committee (CrimPR Committee) to amend Florida Rule of Criminal Procedure
3.172(c)(8). See In re Amends. to Fla. Rules of Crim. Pro., 188 So. 3d at 766.
New “child friendly” form 8.953 (Waiver of Rights) was proposed to ensure that juveniles understand the charges against them and the potential consequences of pleading nolo contendere or guilty. Consistent with our limiting juvenile rule
8.080(c)(10) to “deportation consequences,” we have changed item 6(b)
“immigration issues” in the new form to “deportation issues.”
Next, we decline to adopt, at this time, the proposed amendments to rule
8.090(m)(3) that would establish the single 15-day speedy-trial recapture window suggested by Justice Pariente in her concurring opinion in State v. S.A., 133 So. 3d
506, 509-10 (Fla. 2014) (Pariente J., concurring). Instead, we direct the JCR
Committee to work with the CrimPR Committee to coordinate amendments to the juvenile and criminal speedy-trial rules, in order to ensure continued consistency in
- 5 June 28, 2019 Criminal Procedure Rules Committee 82 the time frames in those rules. Id. at 510 (recognizing that the Court “has interpreted the nearly identical language of the juvenile and adult [speedy-trial] rules consistently”).
We also decline to adopt, at this time, proposed new juvenile rule 8.255(e)
(Taking Testimony), which would address the use of communication equipment in dependency proceedings. And we direct the JCR Committee to work with the RJA
Committee to ensure that any proposed juvenile rule addressing the use of communication equipment is consistent with Florida Rule of Judicial
Administration 2.530 (Communication Equipment) or any amendments to that rule, which, according to the CivPR Committee, are currently being developed.
See In re Amends. to Fla. Rules of Jud. Admin., 73 So. 3d 210, 211-12 (Fla. 2011)
(explaining that judicial administration rule 2.530 is the rule of general application for the use of communication equipment in all types of cases). Because we decline to adopt new rule 8.255(e), we also decline to adopt the proposed amendment to rule 8.257(d)(3) that would replace the reference to “Florida Rule of Judicial
Administration 2.530” with “these rules.”
More Significant Amendments
We discuss the more significant amendments that we adopt as proposed below.
- 6 June 28, 2019 Criminal Procedure Rules Committee 83 Subdivision (b) is added to rule 8.005 (Ordering Children Into Custody) and a sentence is added to rule 8.045(g) (Failure to Appear) to prohibit the court from issuing a custody order based on a child’s failing to appear unless there is evidence that the child willfully failed to appear.
New subdivision (a)(2)(A)(i)h. is added to rule 8.060 (Discovery) to include informant witnesses who will offer testimony concerning the statements of a child charged with a delinquent act as Category A witnesses. New subdivisions
(a)(2)(L)(i)–(a)(2)(L)(vi) require the state to disclose to the child or the child’s counsel and permit the inspection, copying, testing, and photographing of any material or information that has been provided by an informant witness. “Names and addresses of” all persons whom the child expects to call as witnesses is added to subdivision (b)(1)(A) to specify the information that the child must include in the witness information provided to the petitioner.
A number of amendments are made to rule 8.100 (General Provisions for
Hearings) concerning the use of restraints on the child. The first sentence in subdivision (b) (Use of Restraints on the Child) is amended to replace “may” with
“shall,” and add “cloth and leather restraints, or other similar items” to the list of examples of instruments of restraint that “shall not be used on a child during a court proceeding,” except as provided in the rule. That sentence is further amended to require a court order, prior to the child’s appearance in the courtroom,
- 7 June 28, 2019 Criminal Procedure Rules Committee 84 before the child can be restrained during a court proceeding. A second sentence is created emphasizing that all instruments of restraint must be removed prior to the child’s appearance unless “after an individualized assessment of the child,” the court makes the requisite findings. Several new subdivisions are added. New subdivision (b)(3) specifies the factors the court must consider when making a finding that the use of restraints is necessary. New subdivision (b)(4) requires the court to give the child’s attorney an opportunity to be heard before ordering the use of restraints and that counsel be appointed for the hearing if the child qualifies for such appointment and does not waive counsel in writing. New subdivision (b)(5) requires that if the court orders restraints be used, the court must make specific and individualized findings of facts in support of the order and the least restrictive restraints must be used. And, if restraints are ordered, the child must be able to use his or her hands for limited movement that allows the child to read and handle documents necessary to the hearing. Finally, new subdivision (b)(6) prohibits a child from being restrained using restraints fixed to a wall, floor, or furniture.
Subdivision (a)(2) of rule 8.435 (Reinstatement of Jurisdiction for Young
Adult) is amended to require a petition for reinstatement of jurisdiction for a young adult reentering extended foster care to indicate whether the young adult has a special need requiring appointment of counsel as required by section 39.01305,
Florida Statutes. New subdivision (c)(3) requires that in the order on the petition
- 8 June 28, 2019 Criminal Procedure Rules Committee 85 for reinstatement of jurisdiction, the court appoint an attorney to represent a young adult with special needs who is not represented by an attorney. Rule 8.320
(Providing Counsel to Parties) is similarly amended to add new subdivision (a)(4) to require the court to “appoint an attorney to represent a child with special needs as defined in chapter 39, Florida Statutes, and who is not already represented by an attorney.”
CONCLUSION
Accordingly, we amend the Florida Rules of Juvenile Procedure as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective January 1, 2019, at 12:01 a.m.
It is so ordered.
CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.
ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED WITHIN SEVEN DAYS. A RESPONSE TO THE MOTION FOR REHEARING/CLARIFICATION MAY BE FILED WITHIN FIVE DAYS AFTER THE FILING OF THE MOTION FOR REHEARING/CLARIFICATION. THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding – Florida Rules of Juvenile Procedure
David Neal Silverstein, Chair, Bradenton, Florida, and Kara Ann Fenlon, Past Chair, Tallahassee, Florida, Juvenile Court Rules Committee, Tallahassee, Florida; and Joshua E. Doyle, Executive Director, and Mikalla Andies Davis, Staff Liaison, The Florida Bar, Tallahassee, Florida,
- 9 June 28, 2019 Criminal Procedure Rules Committee 86
for Petitioner
Honorable Rodolfo Armando Ruiz II, Chair, and Miguel J. Chamorro, Liaison, Civil Procedure Rules Committee, Miami, Florida; Blaise Trettis, Public Defender, Eighteenth Judicial Circuit, Viera, Florida; and Glen P. Gifford, Public Defender, Second Judicial Circuit, Tallahassee, Florida,
Responding with Comments
- 10 June 28, 2019 Criminal Procedure Rules Committee 87 APPENDIX
RULE 8.005. ORDERING CHILDREN INTO CUSTODY
If a verified petition has been filed, or if, prior to the filing of a petition, an affidavit or sworn testimony is presented to the court, either of which alleges facts which under existing law are sufficient to authorize that a child be taken into custody, the court may issue an order to a person, authorized to do so, directing that the child be taken into custody.
(a) Requirements of Order. The order shall:
(a1) be in writing;
(b2) specify the name and address of the child or, if unknown, designate the child by any name or description by which the child can be identified with reasonable certainty;
(c3) specify the age and sex of the child or, if the child’s age is unknown, that he or she is believed to be of an age subject to the jurisdiction of the circuit court as a juvenile case;
(d4) state the reasons why the child is being taken into custody;
(e5) order that the child be brought immediately before the court or be taken to a place of detention designated by the court to be detained pending a detention hearing;
(f6) state the date when issued and the county and court where issued; and
(g7) be signed by the court with the title of office, or may be electronically signed if the custody order bears the affiant’s signature or electronic signature and is supported by an oath or affirmation administered by the court or other person authorized by law to administer oaths.
(b) Prohibited Orders. The court shall not issue an order to take into custody for a failure to appear for children in the care or custody of the state unless the court has information that the child willfully failed to appear.
- 11 June 28, 2019 Criminal Procedure Rules Committee 88 RULE 8.045. NOTICE TO APPEAR
(a) – (e) [No Change]
(f) Contents. A notice to appear shall contain the following information:
(1) Tthe name and address of the child and the person to whom the child was released.;
(2) Tthe date of the offense(s).;
(3) Tthe offense(s) charged by statute and municipal ordinance, if applicable.;
(4) Tthe counts of each offense.;
(5) Tthe time and place where the child is to appear.;
(6) Tthe name and address of the trial court having jurisdiction to try the offense(s) charged.;
(7) Tthe name of the arresting officer or authorized agent of the department.; and
(8) Tthe signatures of the child and the person to whom the child was released.
(g) Failure to Appear. When a child signs a written notice to appear and fails to respond to the notice, an order to take into custody shall be issued. The court shall not issue an order to take into custody for a child in the care or custody of the state unless the court has information that the child willfully failed to appear.
(h) [No Change]
Committee Notes
[No Change]
- 12 June 28, 2019 Criminal Procedure Rules Committee 89 RULE 8.060. DISCOVERY
(a) Notice of Discovery.
(1) [No Change]
(2) Within 5 days of service of the child’s notice of discovery, the petitioner shall serve a written discovery exhibit which shall disclose to the child or the child’s counsel and permit the child or the child’s counsel to inspect, copy, test, and photograph the following information and material within the petitioner’s possession or control:
(A) A list of the names and addresses of all persons known to the petitioner to have information whichthat may be relevant to the allegations, to any defense with respect thereto, or to any similar fact evidence to be presented at trial under section 90.402(2), Florida Statutes. The names and addresses of persons listed shall be clearly designated in the following categories:
(i) Category A. These witnesses shall include:
(a)a. eye witnesses;
(b)b. alibi witnesses and rebuttal to alibi witnesses;
(c)c. witnesses who were present when a recorded or unrecorded statement was taken from or made by the child or codefendant, which shall be separately identified within this category;
(d)d. investigating officers;
(e)e. witnesses known by the petitioner to have any material information that tends to negate the guilt of the child as to the petition’s allegations;
(f)f. child hearsay witnesses; and
(g)g. expert witnesses who have not provided a written report and a curriculum vitae or who are going to testify.; and
- 13 June 28, 2019 Criminal Procedure Rules Committee 90 h. informant witnesses who will offer testimony concerning the statements of a child charged with a delinquent act about the issues for which the child is being tried.
(ii) – (iii) [No Change]
(B) – (E) [No Change]
(F) Any tangible papers or objects whichthat were obtained from or belonged to the child.
(G) Whether the petitioner has any material or information whichthat has been provided by a confidential informant.
(H) – (J) [No Change]
(K) Any tangible papers or objects whichthat the petitioner intends to use in the hearing and whichthat were not obtained from or belonged to the child.
(L) Whether the state has any material or information that has been provided by an informant witness, including:
(i) the substance of any statement allegedly made by the child about which the informant may testify;
(ii) a summary of the criminal record of the informant witness;
(iii) a summary of the delinquency record of the informant witness, if court ordered;
(iv) the time and place under which the child’s alleged statement was made;
(v) whether the informant witness has received, or expects to receive, anything in exchange for his or her testimony; and
(vi) the informant witness’s prior history of cooperation, in return for any benefit, as known to the state.
(3) – (5) [No Change]
- 14 June 28, 2019 Criminal Procedure Rules Committee 91 (b) Required Disclosure to Petitioner.
(1) If a child elects to participate in discovery, within 5 days after receipt by the child of the discovery exhibit furnished by the petitioner under this rule, the following disclosures shall be made:
(A) The child shall furnish to the petitioner a written list of names and addresses of all persons whom the child expects to call as witnesses at the hearing. When the petitioner subpoenas a witness whose name has been furnished by the child, except for hearing subpoenas, reasonable notice shall be given to the child as to the time and location of examination pursuant to the subpoena. At such examination, the child through counsel shall have the right to be present and to examine the witness. The physical presence of the child shall be governed by rule 8.060(d)(6).
(B) [No Change]
(2) – (3) [No Change]
(c) [No Change]
(d) Depositions.
(1) – (5) [No Change]
(6) Physical Presence of Child. The child shall not be physically present at a deposition except upon stipulation of the parties or as provided by this rule. The court may order the physical presence of the child upon a showing of good cause. In ruling, the court may consider:
(A) – (B) [No Change]
(C) any cost or inconvenience whichthat may result; and
(D) [No Change]
(7) – (9) [No Change]
(e) [No Change]
- 15 June 28, 2019 Criminal Procedure Rules Committee 92 (f) Nontestimonial Discovery. After the filing of the petition, upon application, and subject to constitutional limitations, the court may with directions as to time, place, and method, and upon conditions whichthat are just, require:
(1) – (2) [No Change]
(g) [No Change]
(h) Supplemental Discovery. If, subsequent to compliance with these rules, a party discovers additional witnesses, evidence, or material whichthat the party would have been under a duty to disclose or produce at the time of such previous compliance, the party shall promptly disclose or produce such witnesses, evidence, or material in the same manner as required under these rules for initial discovery.
(i) – (j) [No Change]
(k) Motion to Terminate or Limit Examination. At any time during the taking of a deposition, on motion of a party or of the deponent, and upon a showing that the examination is being conducted in bad faith or in such manner as to unreasonably annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the circuit court where the deposition is being taken may:
(1) terminate the deposition,;
(2) limit the scope and manner of the taking of the deposition,;
(3) limit the time of the deposition,;
(4) continue the deposition to a later time,;
(5) order the deposition to be taken in open court and, in addition,;
(6) may impose any sanction authorized by this rule.
If the order terminates the deposition, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of any party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order.
- 16 June 28, 2019 Criminal Procedure Rules Committee 93 (l) – (m) [No Change]
Court Commentary
[No Change]
RULE 8.080. ACCEPTANCE OF GUILTY OR NOLO CONTENDERE PLEA
(a) – (b) [No Change]
(c) Determination by Court. The court, when making this determination, should place the child under oath and shall address the child personally. The court shall determine that the child understands each of the following rights and consequences of entering a guilty or nolo contendere plea:
(1) Nature of the Charge. The nature of the charge to which the plea is offered and the possible dispositions available to the court.
(2) Right to Representation. If the child is not represented by an attorney, that the child has the right to be represented by an attorney at every stage of the proceedings and, if necessary, one will be appointed. Counsel shall be appointed if the child qualifies for such appointment and does not waive counsel in writing subject to the requirements of rule 8.165.
(3) Right to an Adjudicatory Hearing and Attendant Rights. That the child has the right to plead not guilty, or to persist in that plea if it had already been made, and that the child has the right to an adjudicatory hearing and at that hearing has the right to the assistance of counsel, the right to compel the attendance of witnesses on his or her behalf, the right to confront and cross- examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.
(4) Effect of Plea. That, if the child pleads guilty or nolo contendere, without express reservation of the right to appeal, the right to appeal all matters relating to the judgment, including the issue of guilt or innocence, is relinquished, but the right to review by appropriate collateral attack is not impaired.
- 17 June 28, 2019 Criminal Procedure Rules Committee 94 (5) Waiving Right to an Adjudicatory Hearing. That, if the child pleads guilty or nolo contendere, there will not be a further adjudicatory hearing of any kind, so that by pleading so the right to an adjudicatory hearing is waived.
(6) Questioning by Judge. That, if the child pleads guilty or nolo contendere, the court may ask the child questions about the offense to which the child has pleaded, and, if those questions are answered under oath, on the record, the answers may later be used against the child in a prosecution for perjury.
(7) Terms of Plea Agreement. The complete terms of any plea agreement including specifically all obligations the child will incur as a result.
(8) Sexual Offender Registration. That, if the child pleads guilty or nolo contendere to certain sexual offenses, the child may be required to register as a sexual offender.
(9) Sexually Violent or Sexually Motivated Offenses. That, if the child pleads guilty or nolo contendere, and the offense to which the child is pleading is a sexually violent offense or a sexually motivated offense, or if the child has been previously adjudicated for such an offense, the plea may subject the child to involuntary civil commitment as a sexually violent predator on completion of his or her sentence. It shall not be necessary for the trial judge to determine whether the present or prior offenses were sexually motivated, as this admonition shall be given to all children in all cases.
(10) That, if the child pleads guilty or nolo contendere, and the child is not a United States citizen, the facts underlying the plea may subject the child to deportation pursuant to the laws and regulations governing the United States Citizenship and Immigration Services. It shall not be necessary for the trial judge to inquire as to whether the child is a United States citizen, as this admonition shall be given to all children in all cases.Deportation Consequences.
(A) If the child is not a citizen of the United States, the facts underlying the child’s plea and the court’s acceptance of the plea of guilty or nolo contendere, regardless of whether adjudication of guilt has been withheld, may have the additional consequences of changing his or her immigration status, including deportation or removal from the United States, pursuant to the laws of the United States.
- 18 June 28, 2019 Criminal Procedure Rules Committee 95 (B) The court should advise the child to consult with counsel if he or she needs additional information concerning the potential deportation consequences of the plea.
(C) If the child has not discussed the potential deportation consequences with his or her counsel, prior to accepting the child’s plea, the court is required, upon request, to allow a reasonable amount of time to permit the child to consider the appropriateness of the plea in light of the advisement described in this subdivision.
(D) This admonition should be given to all children in all cases, and the trial court must not require at the time of entering a plea that the child disclose his or her legal status in the United States.
(d) – (h) [No Change]
RULE 8.085. PREHEARING MOTIONS AND SERVICE
(a) Prehearing Motions.
(1) Motions in General. Every motion made before a hearing and any pleading in response to the motion shall be in writing and shall be signed by the party making the motion andor if the party is represented by an attorney, the party’s attorney. This requirement may be waived by the court for good cause shown. (2) – (6) [No Change]
(b) – (d) [No Change]
(e) Pleading to Be Signed by Attorney. Every written paper or pleading of a party represented by an attorney shall be signed in the attorney’s individual name by such attorney, whose mailing address, primary e-mail address and telephone number, including area code, and Florida Bar number shall be stated, and who shall be duly licensed to practice law in Florida. Any document served by e-mail or filed electronically may be signed by any of the “/s/,” “/s”, or “s/” formats. The attorney may be required by an order of court to vouch for the authority to represent such party and to give the address of such party. Except when otherwise specifically provided by these rules or applicable statute, pleadings as such need not be verified or accompanied by affidavit.
- 19 June 28, 2019 Criminal Procedure Rules Committee 96
(f) – (h) [No Change]
Committee Notes [No Change]
RULE 8.090. SPEEDY TRIAL
(a) Time. If a petition has been filed alleging a child to have committed a delinquent act, the child shall be brought to an adjudicatory hearing without demand within 90 days of the earlier of the following:
(1) Tthe date the child was taken into custody.; or
(2) Tthe date of service of the summons that is issued when the petition is filed.
(b) DismissalMotion to Discharge. If an adjudicatory hearing has not commenced within 90 days, upon motion timely filed with the court and served upon the prosecuting attorney, the respondentchild shall be entitled to the appropriate remedy as set forth in subdivision (m). The court bBefore granting such motion, the court shall make the required inquiry under subdivision (d).
(c) Commencement. A child shall be deemedconsidered to have been brought to trial if the adjudicatory hearing begins before the court within the time provided. The adjudicatory hearing is considered to have commenced when the first witness is sworn before the judge.
(d) Motion to DismissDischarge Exceptions. If the adjudicatory hearing is not commenced within the periods of time established, the respondentchild shall be entitled to the appropriate remedy as set forth in subdivision (m) unless any of the following situations exist:
(1) – (2) [No Change]
(3) The failure to hold an adjudicatory hearing is attributable to the child, a co-respondent in the same adjudicatory hearing, or their counselor his or her counsel, or to accommodate a co-defendant when the state shows the necessity of trying the cases together.
- 20 June 28, 2019 Criminal Procedure Rules Committee 97 (4) The child was unavailable for the adjudicatory hearing. A child is unavailable if:
(A) – (B) [No Change]
No presumption of nonavailability attaches, but if the state objects to dismissaldischarge and presents any evidence tending to showevidence of nonavailability, the child must, by competent proof, establish availability during the term.
(5) [No Change]
(6) If the court finds dismissaldischarge is not appropriate, the pending motion to dismissdischarge shall be denied, and an adjudicatory hearing shall commence within 90 days of a written or recorded order of denial.
(e) Incompetency of Child. Upon the filing of a motion to declaresuggesting that the child may be incompetent, the speedy trial period shall be tolled until a subsequent finding of the court that the child is competent to proceed.
(f) Extension of Time. The period of time established by subdivision (a) may be extended as follows:
(1) [No Change]
(2) By written or recorded order of the court on the court’s own motion or motion by either party in exceptional circumstances. The order extending the period shall recite the reasons for the extension and the length of the extension. Exceptional circumstances are those which require an extension as a matter of substantial justice to the child or the state or both. Such circumstances include:
(A) [No Change]
(B) a showing by the state that the case is so unusual and so complex, due to the number of respondentschild co-defendants or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate investigation or preparation within the periods of time established by this rule;
(C) – (D) [No Change]
- 21 June 28, 2019 Criminal Procedure Rules Committee 98 (E) a showing that a delay is necessary to accommodate a co respondentdefendant, wherewhen there is a reason not to sever the cases in order to proceed promptly with the trial of the respondentchild; or
(F) [No Change]
Exceptional circumstances shall not include general congestion of the court’s docket, lack of diligent preparation or failure to obtain available witnesses, or other avoidable or foreseeable delays.
(3) By written or recorded order of the court for a period of reasonable and necessary delay resulting from proceedings including, but not limited to, an examination and hearing to determine the mental competency or physical ability of the respondentchild to stand trial for hearings or pretrial motions, for appeals by the state, and for adjudicatory hearings of other pending charges against the child.
(g) Speedy Trial Upon Demand. Except as otherwise provided by this rule and subject to the limitations imposed by subdivision (h), the child shall have the right to demand a trial within 60 days, by filing a written pleading entitled “Demand for Speedy Trial” with the court and serving it upon the prosecuting attorney.
(1) – (4) [No Change]
(h) Demand for Speedy Trial; Effect. A demand for speedy trial shall be deemed a pleading by the respondentchild that he or she is available for the adjudicatory hearing, has diligently investigated the case, and is prepared or will be prepared for the adjudicatory hearing within 5 days. A demand may not be withdrawn by the child except on order of the court, with consent of the state, or on good cause shown. Good cause for continuance or delay on behalf of the accusedchild shall not thereafter include nonreadiness for the adjudicatory hearing, except as to matters whichthat may arise after the demand for the adjudicatory hearing is filed and whichthat could not reasonably have been anticipated by the accusedchild or defense counsel.
(i) DismissalDischarge After Demand. If an adjudicatory hearing has not commenced within 50 days after a demand for speedy trial, upon motion timely filed with the court having jurisdiction and served upon the prosecuting attorney, the child shall have the right to the appropriate remedy as set forth in subdivision (m), provided the court has made the required inquiry under subdivision (d).
- 22 June 28, 2019 Criminal Procedure Rules Committee 99 (j) Effect of Mistrial, Appeal, or Order of New TrialAdjudicatory Hearing. A child who is to be tried again or whose adjudicatory hearing has been delayed by an appeal by the state or the respondentchild shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a new trialadjudicatory hearing, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from an appellate or other reviewing court which makes possible a new trialadjudicatory hearing for the respondentchild, whichever is last. If the child is not brought to trialan adjudicatory hearing within the prescribed time periods, the child shall be entitled to the appropriate remedy as set forth in subdivision (m).
(k) -( l) [No Change]
(m) Remedy for Failure to Try RespondentChild Within the Specified Time.
(1) No remedy shall be granted to any respondentchild under this rule until the court shall have made the required inquiry under subdivision (d).
(2) The respondentchild may, at any time after the expiration of the prescribed time period, file a motion for discharge. Upon filing the motion the respondentchild shall simultaneously file a notice of hearing. The motion for discharge and its notice of hearing shall be served upon the prosecuting attorney.
(3) No later than 5 days from the date of the filing of a motion for discharge, the court shall hold a hearing on the motion and, unless the court finds that one of the reasons set forth in subdivision (d) exists, shall order that the respondentchild be brought to trial within 10 days. If the respondentchild is not brought to trial within the 10-day period through no fault of the respondentchild, the respondentchild shall be forever discharged from the crimedelinquent act or violation of law.
Committee Notes
[No Change]
RULE 8.100. GENERAL PROVISIONS FOR HEARINGS
Unless otherwise provided, the following provisions apply to all hearings:
- 23 June 28, 2019 Criminal Procedure Rules Committee 100 (a) [No Change]
(b) Use of Restraints on the Child. Instruments of restraint, such as handcuffs, chains, irons, or straitjackets, cloth and leather restraints, or other similar items, mayshall not be used on a child during a court proceeding and except when ordered by the court prior to the child’s appearance in the courtroom in accordance with this rule. Instruments of restraint must be removed prior to the child’s appearance before the court unless after an individualized assessment of the child the court finds both that:
(1) The use of restraints is necessary due to one of the following factors:
(A) Instruments of restraint are necessary to prevent physical harm to the child or another person;
(B) Tthe child’s has a history of disruptive courtroom behavior that has placed others in potentially harmful situations or that presents a substantial risk of inflicting physical harm or himself or herself or others as evidenced by recent behavior; or
(C) There is a founded belief that the child presents a substantial risk of flight from the courtroom; and
(2) There are no less restrictive alternatives to restraints that will prevent flight or physical harm to the child or another person, including, but not limited to, the presence of court personnel, law enforcement officers, or bailiffs.
(3) In making a determination that the use of instruments of restraint is necessary, pursuant to subdivision (b)(1), the court shall consider:
(A) any past escapes or attempted escapes by the child;
(B) evidence of a present plan of escape by the child;
(C) a credible threat by the child to harm himself or herself or another person during court;
(D) evidence of self-injurious behavior on part of the child; and
- 24 June 28, 2019 Criminal Procedure Rules Committee 101 (E) any other factor that is relevant in determining whether the use of instruments of restraint are necessary pursuant to subdivision (b)(1).
(4) The court shall provide the child’s attorney an opportunity to be heard before the court orders the use of restraints. Counsel shall be appointed for this hearing if the child qualifies for such appointment and does not waive counsel in writing as required by rule 8.165.
(5) If restraints are ordered, the court shall make specific and individualized findings of fact in support of the order and the least restrictive restraints shall be used. Any restraints shall allow the child limited movement of his or her hands to read and handle documents and writings necessary to the hearing.
(6) Under no circumstances should a child be restrained using fixed restraints to a wall, floor, or furniture.
(c) – (g) [No Change]
RULE 8.110. ADJUDICATORY HEARINGS
(a) Appearances; Pleas. The child shall appear before the court at the times set and, unless a written plea has been filed, enter a plea of guilty, not guilty, or, with the consent of the court, nolo contendere.
(b) [No Change]
(c) Trial by JudgeCourt. The adjudicatory hearing shall be conducted by the judge without a jury. At this hearing, the court determines whether the allegations of the petition have been sustained.
(d) Testimony. The child may be sworn and testify in his or her own behalf. The child may be cross-examined as other witnesses. No child shall be compelled to give testimony against himself or herself, nor shall any prosecuting attorney be permitted to comment on the failure of the child to testify in his or her own behalf. A child offering no testimony in his or her own behalf except his or her own shall be entitled to the concluding argument.
- 25 June 28, 2019 Criminal Procedure Rules Committee 102 (ed) Joint and Separate Trials. When 2 or more children are alleged to have committed a delinquent act or violation of law, they shall be tried jointly unless the court in its discretion orders separate trials.
(e) Testimony. The child may choose to be sworn as a witness and testify in his or her own behalf. The child may be cross-examined as other witnesses. No child shall be compelled to give testimony against himself or herself, nor shall any prosecuting attorney be permitted to comment on the failure of the child to testify in his or her own behalf. A child offering no testimony on his or her own behalf except his or her own shall be entitled to the concluding argument.
(f) Dismissal. If the court finds that the allegations in the petition have not been sustained, it shall enter an order so finding and dismissing the case. Motion for Judgment of Dismissal. If, at the close of the evidence for the petitioner or at the close of all the evidence in the cause, the court is of the opinion that the evidence is insufficient to establish a prima facie case of guilt against the child, it may, or on the motion of the state attorney or the child shall, enter an order dismissing the petition for insufficiency of the evidence. A motion for judgment of dismissal is not waived by subsequent introduction of evidence on behalf of the child. The motion must fully set forth the grounds on which it is based.
(g) Dispositional Alternatives. If the court finds that the evidence supports the allegations of the petition, it may enter an order of adjudication or withhold adjudication as provided by law. If the pre-disposition report required by law is available, the court may proceed immediately to disposition or continue the case for a disposition hearing. If the report is not available, the court will continue the case for a disposition hearing and refer it to the appropriate agency or agencies for a study and recommendation. If the case is continued the court may order the child detained.Dismissal. If the court finds that the allegations in the petition have not been proven beyond a reasonable doubt, it shall enter an order so finding and dismissing the case.
(h) Degree of Offense. If in a petition there is alleged an offense which is divided into degrees, the court may find the child committed an offense of the degree alleged or of any lesser degree supported by the evidence.
(i) [No Change]
(j) Lesser Included Offenses. On a petition on which the child is to be tried for any offense, the court may find the child committed:
- 26 June 28, 2019 Criminal Procedure Rules Committee 103 (1) an attempt to commit the offense, if thesuch attempt is an offense and is supported by the evidence; or
(2) any offense that as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the petition and is supported by the evidence.
(k) Motion for Judgment of Dismissal. If at the close of the evidence for the petitioner, the court is of the opinion that the evidence is insufficient to establish a prima facie case of guilt against the child, it may, or on the motion of the state attorney or the child shall, enter an order dismissing the petition for insufficiency of the evidence.Dispositional Alternatives. If the court finds that the evidence proved the allegations of the petition beyond a reasonable doubt, it may enter an order of adjudication or withhold adjudication as provided by law. If the pre-disposition report required by law is available, the court may proceed immediately to disposition or continue the case for a disposition hearing. If the report is not available, the court will continue the case for a disposition hearing and refer it to the appropriate agency or agencies for a study and recommendation. If the case is continued the court may order the child detained.
RULE 8.255. GENERAL PROVISIONS FOR HEARINGS
(a) – (d) [No Change]
(e) Invoking the Rule. Before the examination of any witness the court may, and on the request of any party shallmust, exclude all other witnesses. The court may cause witnesses to be kept separate and to be prevented from communicating with each other until all are examined.
(f) [No Change]
(g) Record. A record of the testimony in all hearings shallmust be made by an official court reporter, a court-approved stenographer, or a recording device. The records of testimony shallmust be preserved as required by law. Official records of testimony shallmust be transcribed only on order of the court.
(h) [No Change]
- 27 June 28, 2019 Criminal Procedure Rules Committee 104 (i) Advising Parents. At any hearing when it has been determined that reunification is not a viable alternative, and prior to the filing of the petition for termination of parental rights, the court shall advise the parent of the availability of private placement of the child with an adoption entity as defined in Chapter 63, Florida Statutes.Written Notice. The court must provide written notice of the right to participate in a private adoption plan, pursuant to chapter 63, Florida Statutes, when required by law.
Committee Notes
[No Change]
RULE 8.257. GENERAL MAGISTRATES
(a) – (f) [No Change]
(g) Record.
(1) For the purpose of the hearing on exceptions, a record, substantially in conformity with this rule, shall be provided to the court by the party seeking review. The record shall consist of:
(A) – (C) [No Change]
(2) – (4) [No Change]
(h) [No Change]
RULE 8.320. PROVIDING COUNSEL TO PARTIES
(a) Duty of the Court.
(1) At each stage of the dependency proceeding, the court shall advise the parent of the right to have counsel present.
(2) – (3)
- 28 June 28, 2019 Criminal Procedure Rules Committee 105 (4) At each stage of the dependency proceeding, the court shall appoint an attorney to represent a child with special needs as defined in chapter 39, Florida Statutes, and who is not already represented by an attorney.
(b) [No Change]
RULE 8.425. PERMANENCY HEARINGS
(a) [No Change]
(b) Determinations at Hearing.
(1) The court shall determine:
(A) – (D) [No Change]
(2) – (3) [No Change]
(4) If the court approves a permanency goal of adoption, the court shall advise the parents of the availability of private placement of the child with an adoption entity, as defined in chapter 63, Florida Statutes.
(c) [No Change]
(d) Permanency Order.
(1) – (2) [No Change]
(3) If the court approves a permanency goal of adoption, the order approving this goal shall include a provision stating that the court advised the parents of the availability of private placement of the child with an adoption entity as defined in chapter 63, Florida Statutes, during the permanency hearing.
(43) If the court approves a permanency goal of permanent guardianship of a dependent child, placement with a fit and willing relative, or another planned permanent living arrangement, the court shall make findings as to why this permanent placement is established without adoption of the child to follow. The department and the guardian ad litem must provide the court with a recommended list and description of services needed by the child, such as independent living services and medical, dental, educational, or psychological
- 29 June 28, 2019 Criminal Procedure Rules Committee 106 referrals, and a recommended list and description of services needed by his or her caregiver.
(54) If the court establishes a permanent guardianship for the child, the court’s written order shall:
(A) – (F) [No Change]
(65) The court shall retain jurisdiction over the case and the child shall remain in the custody of the permanent guardian unless the order creating the permanent guardianship is modified by the court. The court shall discontinue regular review hearings and relieve the department of the responsibility for supervising the placement of the child. Notwithstanding the retention of jurisdiction, the placement shall be considered permanency for the child.
(76) If the court permanently places a child with a fit and willing relative, the court’s written order shall:
(A) – (D) [No Change]
(87) If the court establishes another planned permanent living arrangement as the child’s permanency option:
(A) – (D) [No Change]
(e) – (f) [No Change]
RULE 8.435. REINSTATEMENT OF JURISDICTION FOR YOUNG ADULT
(a) Petition for Reinstatement of Jurisdiction.
(1) [No Change]
(2) The petition for reinstatement of jurisdiction must be in writing and specify that the young adult meets the eligibility requirements for readmission to foster care as provided by law. The petition shall indicate whether the young adult has a special need requiring appointment of counsel as required by section 39.01305, Florida Statutes. The petition is not required to be sworn and notarized.
- 30 June 28, 2019 Criminal Procedure Rules Committee 107 (3) [No Change]
(b) [No Change]
(c) Order on Petition for Reinstatement of Jurisdiction.
(1) – (2) [No Change]
(3) The court shall appoint an attorney to represent a young adult with special needs as defined in section 39.01305, Florida Statutes, who is not already represented by an attorney.
- 31 June 28, 2019 Criminal Procedure Rules Committee 108 FORM 8.947. DISPOSITION ORDER—DELINQUENCY
DISPOSITION ORDER
A petition was filed on .....(date)....., alleging .....(name)....., ….. age, to be a delinquent child. The court finds that it has jurisdiction of the proceedings.
Present before the court were:
.....the child;
...... (name)....., Assistant State Attorney;
...... (name)....., Assistant Public Defender/defense attorney;
...... (name)....., guardian;
...... (name)....., DJJ juvenile probation officer.
At the hearing on .....(date)....., after ….. entry of a plea/an adjudicatory hearing…..the child was found to have committed the delinquent acts listed below:
Count Count Count Count Charge ...... Lesser ...... Maximum ...... Degree ...... Guilty ...... Nolo contendere ...... Nolo prose ...... Adjudicated ...... Adj. withheld ......
The predisposition report was ..... received and considered/waived by the child .....
The court, having considered the evidence and comments offered by those present, having inquired, and being otherwise fully advised in the premises ORDERS THAT:
..... Adjudication of delinquency is withheld...... The child is adjudicated delinquent,…… ..... The child is committed to a ..... licensed child caring agency…..the Department of Juvenile Justice for placement in: ..... The child is committed to the Department of Juvenile Justice for placement in:
- 32 June 28, 2019 Criminal Procedure Rules Committee 109 ..... a minimum-risk nonresidential commitment program, for an indeterminate period, but no longer than the child’s 21st birthday or the maximum term of imprisonment an adult may serve for each count listed above, whichever comes first.
..... a ... low- or ... moderate-risknon-secure residential commitment program, for an indeterminate period, but no longer than the child’s 21st birthday or the maximum term of imprisonment an adult may serve for each count listed above, whichever comes first, because
..... the child is before the court for the disposition of a felony;
..... the child has previously been adjudicated or had adjudication withheld for a felony offense;
..... the child previously has been adjudicated or had adjudication withheld for three or more misdemeanor offenses within the previous 18 months;
..... the child is before the court for disposition for a violation of sections 800.03, 806.031, or 828.12, Florida Statutes; or
..... the court finds by a preponderance of the evidence that the protection of the public requires such placement or that the particular needs of the child would be best served by such placement. The facts supporting this finding are: ......
..... a high-risk commitment program, for an indeterminate period, but no longer than the child’s 21st birthday or the maximum term of imprisonment an adult may serve for each count listed above, whichever comes first, because the child is before the court for the disposition of a felony.
..... a maximum-risk commitment program, for an indeterminate period, but no longer than the child’s 21st birthday or the maximum term of imprisonment an adult may serve for each count listed above, whichever comes first, because the child meets the criteria in section 985.465 or 985.494, Florida Statutes.
..... The child is allowed ...... days credit for time spent in secure detention or incarceration before this date.
..... The child shall be placed on:
..... home detention ..... with/without ..... electronic monitoring until placement...... secure detention until placement...... The court has orally pronounced its reasons for adjudicating and committing this child...... The court retains jurisdiction to accept or reject the discharge of this child from commitment, as provided by law.
- 33 June 28, 2019 Criminal Procedure Rules Committee 110 ..... The child is placed on post-commitment juvenile probation for an indefinite period not to exceed the child’s 19th birthday or the maximum term of imprisonment an adult could receive for each count listed above, whichever comes first...... Following commitment, the child is placed on conditional release for a period not to exceed the child’s 21st birthday or the maximum term of imprisonment an adult could receive for each count listed above, whichever comes first...... JUVENILE PROBATION: The child is ..... placed on/continued in on..... juvenile probation under supervision of .....the Department of Juvenile Justice/.....(name)..... and ..... the court having withheld adjudication of delinquency, for an indefinite period not to exceed the child’s 19th birthday...... the court having adjudicated the child delinquent, for an indefinite period not to exceed the child’s 19th birthday or the maximum term of imprisonment an adult could receive for each count listed above, except for a second degree misdemeanor, six months, whichever comes first...... as part of a sex offender treatment program, for an indefinite period not to exceed the child’s 21st birthday or the maximum term of imprisonment an adult could receive for each count listed above. ... DISMISS: The case is dismissed...... Disposition on each count is .....concurrent/consecutive ...... This case disposition is ..... concurrent with/consecutive to..... with case number ......
GENERAL CONDITIONS OF JUVENILE PROBATION. The child shallmust abide by all of the following conditions:
1. The child shallmust obey all laws.
2. The child shallmust be employed full-time or attend school with no unexcused absences, suspensions, or disciplinary referrals.
3. The child shallmust not change or leave .....his/her.... residence, school, or place of employment without the consent of .....his/her..... parents and juvenile probation officer.
4. The child shallmust answer truthfully all questions of .....his/her..... juvenile probation officer and carry out all instructions of the court and juvenile probation officer.
5. The child shallmust keep in contact with the juvenile probation officer in the manner prescribed by the juvenile probation officer.
6. The child shallmust not use or possess alcoholic beverages or controlled substances.
SPECIAL CONDITIONS OF JUVENILE PROBATION. The child shallmust abide by all of the conditions marked below:
- 34 June 28, 2019 Criminal Procedure Rules Committee 111 ..... Restitution is ordered...... Parent and child (s) is/are responsible, ..... Child is responsible, ..... jointly and severally with ...... Amount is reservedThe court reserves jurisdiction to determine the amount of restitution to be paid...... $...... to be paid to ..... (name) ….. Payments shall begin .....(date)..... and continue at the rate of $ ...... each month. ... The court retains jurisdiction under Chapter 985, Florida Statutes, to enforce its restitution order, regardless of the age of the child...... Community Service...... hours are to be performed by the child at the rate of ..... hours per month. Written proof is to be provided to the juvenile probation officer...... Community service for a delinquent act involving the use or possession of a firearm, under section 790.22, Florida Statute, or an offense during the commission of which the child possessed a firearm, and the child is not committed to a residential commitment program of the Department of Juvenile Justice. Community service shall be performed, if possible, in a manner involving a hospital emergency room or other medical environment that deals on a regular basis with trauma patients and gunshot wounds...... First offense, 100 hours...... Second or subsequent offense, 100 hours to 250 hours...... A letter of apology to be written by the child to .....(name)….. within ….. days. The letter must be a minimum of ..... words...... A …… word essay to be written by the child on ..... (subject)…..and provided to the juvenile probation officer within 30 days...... The child maymust have no ………. contact with victim(s), ..... (name(s)) ...... A ..... mental health/substance abuse .....evaluation to be completed by the child within ….. days. The child will attend and participate in every scheduled appointment and successfully attend and complete any and all recommended evaluations and treatment. ….. The parent(s)….. is/are….. to complete counseling in………...... A curfew is set for the child atfrom ...... p.m. to ...... a.m. Sunday through Thursday and from ...... p.m. to ...... a.m. Friday and Saturday. ... The child’s driver’s license is ... suspended/revoked/withheld ... for ... (time period) ...... The child is to complete a ... detention/jail/prison ... tour within ...... days...... The child will be subjectmust submit to random urinalysis as instructed by the Department of Juvenile Justice...... The child will bemust submit to electronically monitoreding by the Department of Juvenile Justice.
- 35 June 28, 2019 Criminal Procedure Rules Committee 112 ..... The child willmust successfully complete all sanctionsspecial conditions of the originaljuvenile probation ordered in this case on .....(date)...... Other: ...... The child must pay court costs of $ ...... , as specified below.
The child is placed on notice that the court may modify the conditions of .....his/her..... juvenile probation at any time and may revoke the juvenile probation if the court finds there is a violation of the conditions imposed.
DRIVER LICENSE
..... The child’s driver license .....is suspended/is revoked/is withheld/limitation is extended.....: ..... for .....(months/years)...... for a delinquent act involving the use or possession of a firearm, under section 790.22, Florida Statute...... First offense, .....(up to one year)...... Second or subsequent offense, .....(up to two years)...... for a delinquent act under Chapter 893, Florida Statutes...... First offense, .....(up to six months)...... Second or subsequent offense, .....(up to two years)......
GUN CHARGES
... The court finds that one of the above charges involves the use or possession of a firearm and further ORDERS the following: ... The child’s driver’s license is ... suspended/revoked ... for ... 1/2 ... years. ... The child is to serve ... 15/21 ... days in the Juvenile Detention Center, and shall not receive credit for time served prior to adjudication.
SECURE DETENTION FOR FIREARM CHARGES
..... Having found the child committed a violation of section 790.22(3), Florida Statutes, under section 790.22(5), Florida Statutes, the child is ordered to serve: ..... for a first violation, ...... days (0 to 3), in the Juvenile Detention Center...... for a second violation, ...... days (0 to 15), in the Juvenile Detention Center...... The court finds that the delinquent act in count ...... involves the use or possession of a firearm other than a violation of section 790.22(3), Florida Statutes, and the child is not committed by this order to a residential commitment program of the Department of Juvenile Justice. Therefore, under section 790.22(9), Florida Statutes, the child is ordered to serve:
- 36 June 28, 2019 Criminal Procedure Rules Committee 113 ..... for a first violation, 15 days (minimum), in the Juvenile Detention Center, and receive no credit for time served prior to this order...... for a second or subsequent violation, 21 days (minimum), in the Juvenile Detention Center, and receive no credit for time served prior to this order...... days in the Juvenile Detention Center, and receive no credit for time served prior to this order.
THE COURT FURTHER FINDS AND ORDERSFINES, FEES, AND COSTS:
..... The child must: ..... pay $ ...... (no less than $50 per case when a misdemeanor offense is charged) or $ ...... (no less than $100 per case when a felony offense is charged), the costs of prosecution and investigation, notwithstanding the child’s present ability to pay, under sections 938.27 and 985.032, Florida Statutes., ..... $50.00, per case (in disposition of every misdemeanor case), the costs of prosecution, ..... $100.00, per case (in disposition of every felony case), the costs of prosecution, or ..... $...... to .....(agency)....., which, having claimed costs of prosecution or investigation, as provided by law, has shown to a preponderance its entitlement to such costs of prosecution or investigation; ..... pay $...... , the Victim’s Crimes Compensation Trust Fund fee, under section 938.03, Florida Statutes; ..... pay $ ...... , the Teen Court cost and service charge, under section 938.19, Florida Statutes (if authorized by county ordinance); ..... pay $ ...... , the Public Defender application fee, under section 27.52, Florida Statutes; ..... pay $ ...... , the Public Defender attorney fee, notwithstanding the child’s present ability to pay, the Legal Assistance Lien for payment of attorneys’ fees or costs, under section 938.29, Florida Statutes;, ..... $50.00, per case (in disposition of every misdemeanor case), ..... $100.00, per case (in disposition of every felony case), or ..... $...... , the court having found sufficient proof of higher fees and costs incurred to .....(agency).....; ..... pay $ ...... , other costs, under section(s) ...... , Florida Statutes...... The child has been adjudicated delinquent and the child is required to pay $...... , an Aadditional cost, under section 939.185, Florida Statutes, if authorized by county ordinance.
- 37 June 28, 2019 Criminal Procedure Rules Committee 114 ..... The child has been adjudicated delinquent and assessed a fine and the child is required to pay $...... to the Crime Prevention Trust Fund, under section 775.083(2), Florida Statutes...... The child has committed an enumerated crime against a minor and the child is required to pay $ ...... , under section 938.10, Florida Statutes...... The child has violated chapter 794, Florida Statutes (sexual battery), or chapter 800, Florida Statutes, (lewd or lasciviousness; indecent exposure), and is ordered to make restitution to the Crimes Compensation Trust Fund under section 960.28(5), Florida Statutes, for the cost of the forensic physical examination...... The child has the inability to pay all court costs, including costs of prosecution, public defender application fees and costs of representation, and shall perform ...... hours of community service in lieu of these costs and fees.
SPECIMENS FROM THE CHILD
..... The child ... has been adjudicated delinquent/has entered a plea of no contest/has entered a plea of guilty ... toor nolo contendere to, or has been found by this court to have committed, a delinquent act which is a felony or an enumerated misdemeanor, and the child is required to submit specimens under section 943.325, Florida Statutes.
ORDERS TO PARENTS/GUARDIANS
..... The parent(s) ..... is/are ...... to complete.....counseling/parenting classes/community service/restitution...... participate with the child in .....court-imposed sanction/community work project...... Under section 985.039, Florida Statutes: ..... the parent/legal guardian, .....(name)....., shallmust pay to the Department of Juvenile Justice, 2737 Centerview Drive, Tallahassee, FL 32399-3100, $5 per day for each day the child is in residential commitmentplaced in secure detention or placed on committed status and the temporary legal custody of the child is placed with the department...... the parent/legal guardian, .....(name).....,, shallmust pay to the Department of Juvenile Justice, 2737 Centerview Drive, Tallahassee, FL 32399-3100, $1 per day for each day the child is placed into non-secure detention, on probation, or other supervision status with the department, or is committed to the minimum risk nonresidential restrictiveness level commitment, or conditional release...... the parent/legal guardian, .....(name)....., shallmust pay to the Department of Juvenile Justice, 2737 Centerview Drive, Tallahassee, FL 32399-3100, a REDUCED fee of $..... per day for each day the child is in the custody of or supervised by the department. This reduced fee is based on the court’s finding:
- 38 June 28, 2019 Criminal Procedure Rules Committee 115 ..... that the parent/legal guardian was the victim of the delinquent act or violation of law for which the child is currently before the court and is cooperating in the investigation of the offense...... of indigency or significant financial hardship. The facts supporting this finding are: ...... The cost of care/supervision fee is WAIVED based on the court’s finding: ..... that the parent/legal guardian was the victim of the delinquent act or violation of law for which the child is currently before the court and is cooperating in the investigation of the offense...... of indigency or significant financial hardship. The facts supporting this finding are: ...... The parent/guardian, .....(name)....., ..... (address) ....., shall be liable for ...... % of the payment. The parent/guardian, ..... (name) ....., ..... (address) ....., shall be liable for ...... % of the payment.
The child is placed on notice that the court may modify the conditions of ... his/her ... juvenile probation at any time and may revoke the juvenile probation if there is a violation of the conditions imposed.
The parties are advised that an appeal is allowed within 30 days of the date of this order.
DONE AND ORDERED in ..... (city) ....., ...... County, Florida on .....(date) ....., at ...... a.m./p.m.
Circuit Judge
Copies to: ......
- 39 June 28, 2019 Criminal Procedure Rules Committee 116 FORM 8.953. WAIVER OF RIGHTS
WAIVER OF RIGHTS 1. Right to counsel.
I have the right to have a lawyer help me at all times while I am in juvenile court. If I cannot afford a lawyer, the court will appoint one to help me. The person next to me is a lawyer who can help me.
I have talked to a lawyer about my case.
2. Entering a plea.
This means that I am not fighting the charge(s). It means that I am entering a plea of guilty or no contest.
By pleading guilty, I am admitting that I did the crime(s) that the state says I did.
By pleading no contest, I am entering a plea because it is in my best interest, but I am not admitting that I did anything wrong.
3. Nature of the charge(s) against me.
I know the crime(s) I have been charged with and what they mean.
I understand what crime(s) I am entering a plea to and which ones (if any) the state will dismiss.
4. Constitutional Rights
By entering a plea, I am giving up the following constitutional rights:
(a) Presumption of innocence.
Right now I am considered innocent and the state has to prove that I am guilty or that I did what they say I did beyond a reasonable doubt. I do not have to prove that I am innocent.
(b) Right to trial.
The state would try to prove I am guilty at a trial or adjudicatory hearing. The state may use evidence such as witness testimony, fingerprints, videos, or photos.
(c) Right to call and cross examine witnesses.
Witness testimony would be people who have information about the crime that are required to come to the trial. They will swear to tell the truth and answer questions by the
- 40 June 28, 2019 Criminal Procedure Rules Committee 117 prosecutor and my lawyer. The state would ask the witnesses questions and my lawyer and I would also be able to ask the witnesses questions.
I would also have the right to call my own witnesses at trial to tell my side of the story and speak for me on my behalf.
(d) Right to testify on your own behalf.
I would also have the right to tell the judge my side of the story after discussion with my lawyer.
(e) Right to remain silent.
I do not have to tell my side of the story. I can sit with my lawyer and not say anything. My decision to not talk or present evidence will not affect how the judge decides whether I am guilty or not guilty.
5. Evidence and/or Defenses.
My lawyer has informed me of the facts that the state would have to prove before I could be found guilty and has discussed with me any possible defenses that could be used in my case. I am entering this plea because I think the state could prove I am guilty if we went to trial or because it is in my best interest.
6. Consequences of a Plea.
My lawyer, or the court, has informed me of the possible consequences of entering into this plea, including, but not limited to:
(a) loss of driver license;
(b) deportation issues;
(c) how this will affect my record and future punishment from the court, including possible consequences in adult court;
(d) how this affects my ability to get a job, join the military, or apply for college;
(e) how this will affect my ability or my parent’s or guardian’s ability to secure or maintain housing; and
(f) issues relating to sex offender registration and notification as well as Jimmy Ryce consequences.
7. Voluntary and Intelligent.
- 41 June 28, 2019 Criminal Procedure Rules Committee 118 I am entering this plea because I want to or because I think it is in my best interest. No one is forcing me to enter this plea. No promises or threats have been made to get me to enter this plea.
I am not under the influence of alcohol, drugs, or medications at this time.
8. Appeal.
If I went to trial and the juvenile court judge decided that I was guilty, I could ask some other judges, called appellate judges, to look over the trial and decide if the trial was fair and if the decision was fair and correct.
This is called my right to appeal. However, if the judge accepts this plea, the only issues I will be able to appeal are those that relate to my sentence and to the judge’s authority to hear my case.
I am presently represented by …..(name)…… My lawyer has gone over all my rights and I am satisfied with the advice and help of my lawyer.
Child Attorney for child Date (print name) (print name)
- 42 June 28, 2019 Criminal Procedure Rules Committee 119 FORM 8.964. DEPENDENCY PETITION
PETITION FOR DEPENDENCY COMES NOW, Petitioner, .....(name)....., by and through undersigned counsel, and petitions this court to adjudicate the above-named minor child(ren) to be dependent within the meaning and intent of chapter 39, Florida Statutes. As grounds, petitioner alleges the following:
1. This court has jurisdiction over the minor child(ren), .....(name(s))....., a .....(gender)..... child, whose date(s) of birth is/are ...... , and who, at the time the dependency arose, was/were in the custody of .....(name(s))......
2. The natural mother of the minor child(ren) is .....(name)....., a resident of .....(state)....., whose address is ………..
3. The father of the minor child(ren), .....(name(s))..... is .....(name)....., whose address is ……….. The father ..... is ..... is not married to the mother, and ..... is ..... is not listed on the child(ren)’s birth certificate(s). The mother filed a Sworn Statement About Identity or Location of Father with this court on .....(date)....., which named ………. as the father.
4. The UCCJEA Affidavit ..... is attached ..... was filed with the Court on .....(date)..... and is incorporated by reference.
5. The child(ren) is/are dependent within the meaning and intent of chapter 39, Florida Statutes, in that the mother/father/parents/legal custodian/caregiver(s) abused, abandoned, or neglected the minor child(ren) on or about .....(date)....., by: ...... and that these activities and environments cause the child(ren)’s physical, mental, or emotional health to be in danger of being significantly impaired.
OR 5. The above named child(ren) is/are presently under substantial risk or imminent threat of harm or abuse or neglect, within the meaning and intent of chapter 39, Florida Statutes, which is likely to cause the child(ren)’s physical health to be significantly impaired because ......
6. The department is unable to ensure the protection of the minor child(ren) without judicial intervention.
7. The mother/father/parents has/have received the following services: ......
8. A shelter hearing was held on .....(date)....., and the child(ren) was/were placed in the custody of ......
9. An arraignment hearing
..... needs to be scheduled.
..... is scheduled for .....(date and time)......
- 43 June 28, 2019 Criminal Procedure Rules Committee 120 10. A guardian ad litem
..... needs to be appointed.
..... was appointed at the shelter hearing to represent the child(ren).
11...... (name of child(ren))..... has/have special needs as defined in Chapter 39, Florida Statutes. An attorney:
..... needs to be appointed.
..... has been appointed.
12. Under chapter 39, Florida Statutes, the clerk of the court is required to issue a summons to the following parents or custodians:
The natural mother, .....(name)....., whose address is ......
The natural father, .....(name)....., whose address is ......
.....(Additional fathers and their addresses)......
WHEREFORE, the petitioner asks that process may issue in due course to bring the above-named parties before the court to be dealt with according to the law, to adjudicate the named minor child(ren) named to be dependent.
….(Petitioner’s name)……
…… (Attorney’s name)….. ….. (address and telephone number) Florida Bar Number:………. Verification Certificate of service NOTICE OF RIGHTS PLEASE READ THIS PETITION BEFORE ENTERING THE COURTROOM.
YOU HAVE A RIGHT TO HAVE COUNSEL PRESENT AT THIS HEARING.
BY COPY OF THIS PETITION, THE PARENTS, CAREGIVERS, AND/OR LEGAL CUSTODIANS ARE NOTIFIED OF THEIR RIGHT TO HAVE LEGAL COUNSEL PRESENT FOR ANY PROCEEDING RESULTING FROM THIS PETITION OR TO REQUEST THE COURT TO HAVE COUNSEL APPOINTED, IF INDIGENT.
Further, these persons are informed of the following:
- 44 June 28, 2019 Criminal Procedure Rules Committee 121 An arraignment is set on this matter for .....(date)....., at ..... a.m./p.m., at .....(location)...... The purpose of the arraignment is to advise as to the allegations contained in the Petition For Dependency. When your case is called, the Judge will ask you to enter a plea to this petition. The plea entered may be one of the following:
1. Admit: This means you admit that the petition states the truth and you do not want a trial.
2. Consent: This means you neither admit nor deny the petition, but do not want a trial.
(If you enter either of the above two pleas, the court will set a disposition date for the matter. At disposition, the court will decide where the child will stay and under what conditions).
3. Deny: This means you deny the allegations of the petition and wish the state to attempt to prove them at a trial.
4. Continue: This means you wish time to confer with an attorney, before entering a plea. If you enter this plea, the court will schedule another hearing in approximately 2 weeks. At that time, another arraignment hearing will be held, and you (or your attorney) must enter one of the above three pleas.
COMMENT: The following paragraph must be in bold, 14 pt. Times New Roman or Courier font.
If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact .....(name, address, and telephone number)..... at least 7 days before your scheduled court appearance, or immediately upon receiving this notification if the time before the scheduled appearance is less than 7 days. If you are hearing or voice impaired, call 711.
- 45 June 28, 2019 Criminal Procedure Rules Committee 122 FORM 8.965. ARRAIGNMENT ORDER
ORDER ON ARRAIGNMENT AND NOTICE OF NEXT HEARING THIS CAUSE came to be heard on .....(date)....., under chapter 39, Florida Statutes, on the Petition For Dependency filed by .....(name)....., for arraignment of .....(name(s))...... The following persons appeared before the Court:
….. ….. (Name)….., Petitioner ….. ….. (Name)….., Attorney for the petitioner ….. ….. (Name)….., Attorney for the department ….. ….. (Name)….., Department caseworker ….. ….. (Name)….., Mother ….. ….. (Name)….., Attorney for the mother ….. ….. (Name)….., Father of …..(child)….. ….. ….. (Name)….., Attorney for father ….. ….. (Name)….., Guardian ad litem ….. ….. (Name)….., Attorney for guardian ad litem ….. ….. (Name)….., Attorney/Attorneys for …..Child/Children….. ….. ….. (Name)….., Legal custodian ….. ….. (Name)….., Attorney for legal custodian ….. ….. (Name)….., Other ………..
The court having considered the Petition for Dependency and having heard testimony and argument, and having been otherwise duly advised in the premises finds:
1. This court has jurisdiction over the subject matter of this action; and
2. The mother, …… (name)…..:
….. was …..not noticed of this hearing
…..did not appear, and the court: ….. entered a consent by default …… did not enter a consent by default;
….. appeared with counsel….. appeared without counsel and: ….. was….. was not advised of her right to legal counsel; knowingly, intelligently, and voluntarily, …..waived ……did not waive her right to legal counsel; and ……was ….. was not determined to qualify as indigent and….. was ….. was not appointed an attorney.
..... was served with a petition for dependency, and entered a plea of: ..... Admit, ..... Deny, ..... Consent, ..... No Plea, ..... Continuance
..... The Petitioner:
- 46 June 28, 2019 Criminal Procedure Rules Committee 123
….. will continue a diligent search and will attempt service.
..... has conducted an adequate diligent search and is excused from further diligent search and further attempts at service.
3. The father, .....(name).....:
..... was ..... was not noticed of this hearing;
..... did not appear, and the court: ..... entered a consent by default ..... did not enter a consent by default;
….. appeared with counsel….. appeared without counsel and: ….. was….. was not advised of his right to legal counsel; ….. knowingly, intelligently, and voluntarily, …..waived ……did not waive his right to legal counsel; and ……was ….. was not determined to qualify as indigent and….. was ….. was not appointed an attorney...... was served with a petition for dependency, and entered a plea of: ..... Admit, ..... Deny, ..... Consent, ..... No Plea, ..... Continuance
..... The Petitioner:
..... will continue a diligent search and will attempt service.
..... has conducted an adequate diligent search and is excused from further diligent search and further attempts at service.
4. That the child(ren)’s current placement in shelter care:
..... is no longer appropriate, and the child(ren) shall be returned to ……….
..... is appropriate, in that the child(ren) is/are in a setting which is as family-like as possible, consistent with the child(ren)’s best interest and special needs; and, that returning the child(ren) to the home would be contrary to the best interest of the minor child(ren); and, that every reasonable effort has been made to eliminate the need for placement of the child(ren) in shelter care, but present circumstances of the child(ren) and the family are such that shelter care is the only way to ensure the child(ren)’s health, safety, and well-being.
5. Additional findings: ……….
THEREFORE, based on the foregoing findings of fact, it is hereby ORDERED and ADJUDGED that: 1. The minor child(ren) shall:
..... be ..... returned to ..... remain in the care and custody of .....(name)......
- 47 June 28, 2019 Criminal Procedure Rules Committee 124 ..... remain in the care and custody of the department in shelter care pending adjudication and disposition or until further order of this court.
2. The child(ren): ..... is/are ..... is/are not adjudicated dependent at this hearing.
3...... Mediation ..... A case planning conference is/are ordered at this time and shall be conducted on .....(date)...... , at ...... a.m./p.m., at .....(location)...... All parties, unless otherwise specified, shall attend.
4. As to the mother, .....(name)....., the court:
Accepts the plea of: ..... Admit, ..... Deny, ..... Consent, ..... Continuance.
.....Appoints ..... Does not appoint an attorney.
Sets a hearing for ..... re-arraignment ...... adjudicatory trial ..... disposition and case plan hearing ..... trial status on .....(date)..... at ..... a.m./p.m.
5. As to the father, .....(name)....., the court:
Accepts the plea of: ..... Admit, ..... Deny, ..... Consent, ..... Continuance...... Appoints ..... Does not appoint an attorney.
Sets a hearing for ..... re-arraignment ...... adjudicatory trial ..... disposition and case plan hearing ..... trial status on .....(date)..... at ..... a.m./p.m.
6. All prior orders not inconsistent with the present order shall remain in full force and effect.
DONE AND ORDERED on .....(date)......
Circuit Judge NOTICE OF HEARING The Juvenile Court hereby gives notice of hearing in the above-styled cause on .....(date)..... at ...... a.m./p.m., before .....(judge)....., at .....(location)..... or as soon thereafter as counsel can be heard.
COMMENT: The following paragraph must be in bold, 14 pt. Times New Roman or Courier font.
If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact .....(name, address, and telephone number)..... at least 7 days before your scheduled court appearance, or immediately upon receiving this notification if the time before the scheduled appearance is less than 7 days. If you are hearing or voice impaired, call 711. PLEASE BE GOVERNED ACCORDINGLY.
- 48 June 28, 2019 Criminal Procedure Rules Committee 125 Copies furnished to:
- 49 June 28, 2019 Criminal Procedure Rules Committee 126 FORM 8.974. PETITION TO EXTEND OR REINSTATE COURT’S JURISDICTION
PETITION TO EXTEND JURISDICTION OR TO REINSTATE JURISDICTION AND TO SCHEDULE HEARING I, .....(name, address, and date of birth)..... request the court, under section 39.013(2), Florida Statutes to
..... extend jurisdiction, or
..... reinstate jurisdiction,
and to schedule a hearing in this matter.
1. I am currently or was on my 18th birthday in the legal custody of the Department of Children and Family Services.
2...... a. I am requesting that the court review the aftercare support, Road to-Independence scholarship, transitional support, mental health services, and/or developmental disability services to the extent authorized by law.
..... b. A petition for special immigrant juvenile status has been filed on my behalf and the application will not be granted by the time I reach 18 years of age.
WHEREFORE, I request this court extend or reinstate jurisdiction in this case and schedule a hearing as soon as possible.
…..(name)….. …..(address)….. …..(phone number)…..
- 50 June 28, 2019 Criminal Procedure Rules Committee 127 FORM 8.991. FINAL ORDER DISMISSING PETITION FOR JUDICIAL WAIVER OF PARENTAL NOTICE OF TERMINATION OF PREGNANCY
IN THE CIRCUIT COURT OF THE JUDICIAL CIRCUIT, IN AND FOR COUNTY, FLORIDA In the interest of Case no. (pseudonym or initials of minor) Division: FINAL ORDER DISMISSING PETITION FOR JUDICIAL WAIVER OF PARENTAL NOTICE OF TERMINATION OF PREGNANCY
THIS CAUSE having come before the court on a petition for judicial waiver of parental notice of termination of pregnancy and the court being otherwise advised in the premises, finds the following:
The minor has not proven by sufficient evidence any of the criteria that would permit a judicial waiver of the parental notification requirements of section 390.01114(3), Florida Statutes, for the following reasons:
….. It was not proven by clear and convincing evidence that the minor is sufficiently mature to decide whether to terminate the pregnancy; specifically, the court has considered the following factors in reaching this decision and makes the following findings:
The minor’s age is: ……….
The minor’s overall intelligence indicates: …………………………………………….…………………………………………………...... …………………………………………….…………………………………………………......
The minor’s emotional development and stability indicate: …………………………………………….…………………………………………………...... …………………………………………….…………………………………………………......
The minor’s credibility and demeanor as a witness indicates: …………………………………………….…………………………………………………...... …………………………………………….…………………………………………………......
The minor’s ability to accept responsibility is demonstrated by: …………………………………………….…………………………………………………...... …………………………………………….…………………………………………………......
The minor’s ability to assess both the immediate and long-range consequences of the minor’s choices is demonstrated by: …………………………………………….…………………………………………………...... …………………………………………….…………………………………………………......
- 51 June 28, 2019 Criminal Procedure Rules Committee 128
The minor’s ability to understand and explain the medical risks of terminating her pregnancy and to apply that understanding to her decision is indicated by: ………………………………………………………………….…………………………………… ……………………………………………………………………………………………......
The minor’s decision to have an abortion may have been made under any undue influence by another is indicated by: …………………………………………….……………………………………………………...... …………………………………………….……………………………………………………......
….. It was not proven by the preponderance of the evidence that the petitioner is the victim of child abuse inflicted by one or both of her parents or her guardian;
….. It was not proven by clear and convincing evidence that notification of the parent or guardian is not in the best interest of the petitioner;
….. Other:
THEREFORE, it is ORDERED AND ADJUDGED that:
1. The petition for judicial waiver of parental notice of termination of pregnancy is DISMISSED.
2. The court shall provide a written transcript of all testimony and proceedings as provided by section 390.01114, Florida Statutes.
3. The clerk shall keep and maintain a confidential record of these proceedings as provided by sections 390.01114 and 390.01116, Florida Statutes, and shall seal the record.
4. The clerk shall immediately provide Form 9.900(f) Notice of Appeal of an Order Dismissing a Petition for Judicial Waiver of Parental Notice of Termination of Pregnancy and Advisory Notice to Minor to the minor or petitioner if other than the minor.
DONE AND ORDERED in the ...... court in and for ...... County, Florida, on .....(date)......
______Judge
- 52 June 28, 2019 Criminal Procedure Rules Committee 129 From: Davis, Mikalla
So, I reread the juvenile cycle opinion. Here’s the portion of the opinion that perhaps is requesting a joint subcommittee. The full opinion is attached.
Next, we decline to adopt, at this time, the proposed amendments to rule 8.090(m)(3) that would establish the single 15-day speedy-trial recapture window suggested by Justice Pariente in her concurring opinion in State v. S.A., 133 So. 3d 506, 509-10 (Fla. 2014) (Pariente J., concurring). Instead, we direct the JCR Committee to work with the CrimPR Committee to coordinate amendments to the juvenile and criminal speedy-trial rules, in order to ensure continued consistency in the time frames in those rules.
Thank you,
Mikalla Davis Attorney Liaison—Rules The Florida Bar 850-561-5663 [email protected]
June 28, 2019 Criminal Procedure Rules Committee 130 THE FLORIDA BAR CRIMINAL PROCEDURE RULES COMMITTEE
SUBCOMMITTEE ACTION REPORT
TO: Sheila Loizos
FROM: Robert Scavone
Please be advised that Subcommittee III conducted a meeting on May 15, 2019, by conference call to discuss docket number 19-07-III.
Subcommittee attendance was as follows:
Member Name Present Not Present Robert Scavone, Chair X Danielle Sherriff, Oversight X Hon. Stephen Everett X Jude Faccidomo X Cynthia Green X Nicole Hardin X Shaquana Harper X Sarah Hatch X Hon. Richard Hersch X Varinia Van Ness X
Additional participants included: Sam Masters, BOG Liaison Sheila Loizos, Chair Heather Telfer, Bar Liaison
The Subcommittee took the following action:
1. Determined that the submission is within the scope of Subcommittee authority. YES
2. Made the following work assignments: N/A
3. Made the following decisions: To amend Rule 3.220(h)(5) to have the prosecuting attorney send the designated e-mail address or physical address used for service of notice of to the defendant with discovery. The vote to approve was 9-0.
4. Prepared the attached written report. Please detail the legal reasoning for the amendment.
1 June 28, 2019 Criminal Procedure Rules Committee 131 5. RULE 3.220. DISCOVERY
(h)(5) Depositions of Law Enforcement Officers. Subject to the general provisions of subdivision (h)(1), law enforcement officers shall appear for deposition, without subpoena, upon written notice of taking deposition delivered at the physical address of the law enforcement agency or department, or an e-mail or other address designated by the law enforcement agency or department, 5 days prior to the date of the deposition. Any physical address or e-mail address designated by a law enforcement agency or department for service of notice of deposition shall be provided by the prosecuting attorney with discovery. Law enforcement officers who fail to appear for deposition after being served notice as required by the rule may be adjudged in contempt of court.
The Subcommittee Chair is prepared to report to the full Committee at the meeting on June 28, 2019.
Subcommittee Chair
cc: Committee Chair Committee Secretary The Florida Bar Liaison
2 June 28, 2019 Criminal Procedure Rules Committee 132 From: Ira D. Karmelin
Heather,
Would you please forward this email to the appropriate liaison?
I am respectfully requesting an amendment to Florida rule of Criminal Procedure 3.220. Currently, the rule requires the State to provide the defendant with the address of all witnesses. I am requesting that the State also be required to provide the defendant with the official departmental e-mail address for all law enforcement personnel, along with the court liaison's e-mail address for said individual. Because law enforcement officers can be required to attend a deposition via notice rather than a subpoena, requiring the State to provide their e-mail address, will permit the defendant to simply add the law enforcement officer and court liaison to the portal, for service of the notice of deposition. With that, there will be an independent paper trail showing that the defendant did send notice to the law enforcement officer for the deposition. The Committee may also need to amend the portion of 3.220 regarding the sending of notice to include notices served via e-mail. The rule can further be amended to require that the notice for deposition be served on the court liaison, in addition to the law enforcement officer. Because all the e-mail addresses can be added to the portal, this will add minimal work for the defense attorney and will also provide the State with the portal receipt showing that the notice was sent to the witness and court liaison. I would also ask the Committee to consider adding civilian personnel to the portion of the rule that allows for a deposition via notice rather than requiring a subpoena be served on the civilian personnel of a law enforcement agency.
In advance, thank you for your prompt attention to this matter. Should you have any questions, please do not hesitate to contact me.
With warmest regards,
Ira
Ira D. Karmelin, Attorney & Counselor at Law Board Certified in Criminal Trials & Appeals 3897 North Haverhill Road, Suite 127 West Palm Beach, Florida 33417-8337 (561) 683-6141 (561) 683-6396 (FAX) [email protected]
June 28, 2019 Criminal Procedure Rules Committee 133 THE FLORIDA BAR CRIMINAL PROCEDURE RULES COMMITTEE
SUBCOMMITTEE ACTION REPORT
TO: Sheila Loizos
FROM: Robert Scavone
Please be advised that Subcommittee III conducted a meeting on April 18, 2019, by conference call to discuss docket number 18-10-III.
Subcommittee attendance was as follows:
Member Name Present Not Present Robert Scavone, Chair X Danielle Sherriff, Oversight X Hon. Stephen Everett (present for conclusion & X vote) Jude Faccidomo X Cynthia Green X Nicole Hardin X Shaquana Harper X Sarah Hatch X Hon. Richard Hersch X Varinia Van Ness X
Additional participants included: Sam Masters, BOG Liaison Roseanne Eckert Matt Whyte, Clerk Liaison Heather Telfer, Bar Liaison
The Subcommittee took the following action:
1. Though the issue has not been resolved, the Chair suggested that the proposed rule is outside the scope of the Committee’s authority, and that, even if the Committee is authorized to promulgate the proposed rule, Subcommittee III is not the proper venue.
2. Made the following work assignments: N/A
3. Made the following decisions: To ask the full Committee whether the issue is substantive or procedural in nature. Whether it would require legislation to implement, or whether the committee has the authority to promulgate the rule. Motion passed 4-3.
1 June 28, 2019 Criminal Procedure Rules Committee 134 4. Prepared the attached written report. There was discussion as to whether an ex parte subpoena duces tecum is substantive in nature or procedural. Another question is whether defendant’s rights are substantive prior to filing charges, but procedural in nature after filing charges. Do procedural rules “kick in” upon arrest or upon the filing of charges? There was also discussion as to which part of the rules set a rule on investigatory subpoena would fit best.
The Subcommittee Chair is prepared to report to the full Committee at the meeting on June 28, 2019.
Robert Scavone Jr. Subcommittee Chair
cc: Committee Chair Committee Secretary The Florida Bar Liaison
2 June 28, 2019 Criminal Procedure Rules Committee 135 From: Jason Blank
Good afternoon Heather,
I have a referral that I would ask you to make to the appropriate subcommittee: I would like the subcommittee to consider investigative subpoenas for Defendants.
Please let me know what, if any, other information you may need from me.
Thank you,
Jason B. Blank Partner Licensed in FL and NJ
Haber Blank, LLP 888 South Andrews Avenue Suite 201 Fort Lauderdale, Florida 33316 T 954.767.0300 F 954.949.0510 E [email protected] [email protected] www.haberblank.com
June 28, 2019 Criminal Procedure Rules Committee 136 RULE 3.220. DISCOVERY
(i) Defense Investigative Subpoena.
(1) Investigatory Subpoenas. A defendant, following arrest, may issue an investigative subpoena for the purposes of inspecting or obtaining copies of documents which are relevant to the crime(s) for which the defendant is charged. Except as provided in subdivision (i)(3)(C) of this rule, any such subpoena may be issued ex parte and without notice to the prosecuting attorney’s office. Any items secured through an investigatory subpoena shall be governed by subdivisions (b)–(d) of this rule.
(2) Request; Scope. Subject to the limitations provided in this rule, a defendant may, upon the issuance of an investigative subpoena, seek inspection or copying of documents as defined by Florida Rule of Civil Procedure 1.350(a), which are capable of being copied or duplicated, and that are relevant to the crime(s) for which the defendant is charged, from a person or entity even when the defendant does not seek to depose the custodian or other person in possession of the documents. To the extent the documents are incapable of being copied or duplicated, the person or entity against whom the subpoena is directed (the “recipient”) shall not be compelled to produce the originals nor shall said recipient be compelled to produce anything if the recipient elects to challenge the subpoena as provided by this rule.
(3) Limitations.
(A) No investigative subpoena shall be issued by a defendant commanding the personal appearance of a witness unless issued for purposes of a discovery deposition pursuant to subdivision (h) of this rule.
(B) No investigative subpoena shall be issued without leave of court. Except as provided by (i)(3)(C) of this rule, such leave may be obtained by filing an ex parte motion with the trial court in which the case is pending.
(C) No investigative subpoena shall be directed to a minor without first providing notice to the prosecuting attorney’s office and, upon such notice, the prosecuting attorney’s office shall have 10 days to move for a protective order. The matter shall be set for hearing before the trial court on the prosecuting attorney’s office’s motion for protective order within 5 days of the objection being filed.
June 28, 2019 Criminal Procedure Rules Committee 137 (D) No investigative subpoena shall request the production of tangible things other than such tangible things, which are capable of being copied or duplicated. Documents, as defined by Florida Rule of Civil Procedure 1.350(a), which cannot be copied or duplicated may be made available for inspection.
(E) No investigative subpoena shall request information that is protected by local, state, or federal privacy laws or regulations, or exempt from disclosure under applicable public records laws or regulations.
(F) No investigative subpoena shall be issued prior to a defendant’s arrest for information pertaining to an active or ongoing criminal investigation by any law enforcement agency or prosecuting attorney’s office nor shall an investigative subpoena be issued to any employee (in their official capacity) of such an agency or office.
(G) No investigative subpoena shall be directed at any law enforcement agency or prosecuting attorney’s office or any employee (in their official capacity) of such an agency or office for information pertaining to the crime(s) for which a defendant has been arrested.
(4) Procedure. A defendant seeking documents under this rule shall serve upon the recipient an investigative subpoena at least 10 days before production is required. An investigative subpoena shall state the time, place, and method for production of the documents, and the name and address of the person who is to provide the documents, if known, and if not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. The subpoena shall include a description of the documents to be copied or duplicated.
(A) An investigative subpoena shall state that the recipient has the right to object to the subpoena and shall provide sufficient language as to how such an objection may be made, and shall further state that, should the objection be sustained, that the recipient shall not be required to produce the documents sought. The subpoena shall also state that the recipient may recover attorneys’ fees as provided by subdivision (i)(7) of this rule.
(B) Except as provided in subdivisions (i)(3)(C) of this rule, a copy of the investigative subpoena need not be provided to the prosecuting attorneys’ office. If the recipient of the subpoena tenders an objection to production under this rule within 10 days of service, the documents shall be
June 28, 2019 Criminal Procedure Rules Committee 138 withheld pending resolution of the objection in accordance with subdivisions (i)(5) and (i)(6) of this rule.
(5) Subpoena. Service within the State of Florida of an investigative subpoena shall be deemed sufficient if it complies with Florida Rules of Civil Procedure 1.410(d) or if:
(A) service is accomplished by mail or hand delivery by a commercial delivery service; and
(B) written confirmation of delivery, with the date of service, and the name and signature of the person accepting the subpoena, is obtained and filed by the defendant.
An investigative subpoena shall require only production of copies of the documents and shall instruct the recipient to retain the original(s) of the item sought. An investigative subpoena shall give the recipient the option to deliver or mail legible copies of the documents to the defendant. As provided in subdivision (i)(3)(E) of this rule, an investigative subpoena shall advise the recipient as to the type of information that may be protected by local, state, and federal privacy laws and inform the recipient that such information may be exempt from subpoena. The recipient may condition the preparation of copies or duplicates on the payment in advance of the reasonable costs of preparing the copies or duplicates. If the recipient objects at any time before providing copies of the documents, the documents shall not be provided to the defendant, and, except as provided by (i)(3)(c) of this rule, the defendant may obtain relief through filing an ex parte motion in the trial court seeking enforcement of the subpoena.
(6) Ruling on Objection. If an objection is made by the recipient, a defendant may file an ex parte motion with the trial court where the case is pending seeking a ruling on the objection. If the prosecuting attorney’s office files an objection under (i)(3)(C) of this rule, any motion filed by the defendant shall be made with notice to the prosecuting attorney’s office. Nothing in this rule prevents the prosecuting attorney’s office from filing an objection to the subpoena on behalf of a recipient should the prosecuting attorney’s office learn of the subpoena.
(7) Attorneys’ Fees. A court, in its discretion, may award the recipient of an investigative subpoena reasonable attorneys’ fees and costs if the subpoena is quashed in whole or in part. Upon the granting of a motion for protective order and a finding that the subpoena was frivolous or done for the purpose of intimidation, harassment, or delay, the court shall award reasonable
June 28, 2019 Criminal Procedure Rules Committee 139 attorneys’ fees and costs. Under this subdivision, attorneys’ fees and costs may be awarded up to a limit of $2,000 per recipient.
Committee Notes 20__Amendment. Nothing in subdivision (i) is to be interpreted as attempting to supersede or circumvent any local, state, or federal law pertaining to the protection of individual privacy rights. Such information may include, but is not limited to, medical records, mental health records, employment personnel files or disciplinary files, school records, and personal financial information such as bank records, tax returns, investment accounts, retirement accounts, wills, and trust documents. Subdivision (i) is not intended to circumvent the procedures required to obtain information from public entities.
June 28, 2019 Criminal Procedure Rules Committee 140 From: Telfer, Heather Sent: Monday, December 10, 2018 10:21 AM To: 'Eckert, Roseanne'
Good Morning,
There has been no response on the questions posed below. The deadline for response was December 3. In light of this inaction, Chair Scavone would like to take a vote asking that no further action take place on this referral.
Thanks,
Heather
Heather Savage Telfer Attorney Liaison – Rules The Florida Bar 850-561-5702 [email protected]
From: Telfer, Heather Sent: Thursday, November 29, 2018 4:00 PM To: Robert Scavone Jr.
Good Afternoon,
Just a reminder of the questions below that need to be answered.
Thanks,
Heather
Heather Savage Telfer
June 28, 2019 Criminal Procedure Rules Committee 141 Attorney Liaison – Rules The Florida Bar 850-561-5702 [email protected]
From: Robert Scavone Jr.
Dear Fellow Subcommittee Members:
I believe that any attempt to move this issue back to the full committee is futile in light of the fact that support for the proposed rule fell well short of the required 2/3’s vote, and because the vote was less than a months ago. Nevertheless, we are obliged to treat this as a new referral. Therefore, if you are so inclined, please answer the following questions by Dec. 3:
1. How would the proposed rule apply to co-defendants? For example, what results if the defendant subpoenas a co-defendant and the co-defendant turns over evidence that inculpates the co-defendant? Will the defendant be obligated to turn that evidence over to the prosecuting attorney’s office? 2. Does the issuing of an investigative subpoena trigger reciprocal discovery? If so, why? If not, why not? 3. What, if any, is the statutory or constitutional basis for the proposed rule? And, relatedly, whether the proposed rule conflicts with or is precluded by chapter 27? 4. Who has the burden of establishing the validity of the subpoena request? And, relatedly, what is the standard? Is it mere relevance? 5. What impact does Amendment 6 have on the proposed rule? 6. Should pro se defendants be precluded from using the rule? 7. Should the prosecuting attorney’s office be noticed if a recipient moves to quash the subpoena? If so, why? If not, why not?
Thank you for your continued attention to this important matter.
ROBERT SCAVONE JR. Assistant State Attorney 15th Judicial Circuit Direct: 561-355-7250
June 28, 2019 Criminal Procedure Rules Committee 142
From: Telfer, Heather [mailto:[email protected]] Sent: Wednesday, November 7, 2018 1:08 PM To: Eckert, Roseanne
Good Afternoon,
While 16-18-III regarding investigatory subpoenas ended with the vote on October 19, 2018, the issue has been freshly referred to this subcommittee by Jason Blank. The agenda deadline is January 4, 2019.
I don’t have minutes for the October meeting yet, but according to my notes, the issues raised and arguably not previously addressed are:
1. Co-defendants, how does this impact them? 2. What triggers reciprocal discovery (not sure if this is addressed)? 3. What is the statutory or constitutional basis for the rule? 4. What is the burden of proof and what standards the judge should use? 5. Is there a conflict with Chapter 27, Florida Statutes? 6. Is this proposal impacted by the recent adoption of Constitutional Revision No. 6 (attached)? 7. How do these connect back to an arrest warrant? 8. Will pro se defendants be able to ask for these as well?
Thanks,
Heather
Heather Savage Telfer Attorney Liaison – Rules The Florida Bar 850-561-5702 [email protected]
June 28, 2019 Criminal Procedure Rules Committee 143 Date: April 5, 2019 To: Subcommittee III From: Jude M. Faccidomo CC: Sheila Loizos, CPRC Chair; Heather Telfer Re: Referral 18-10-III (Defense Investigative Subpoena)
At a meeting on January 4, 2019, Subcommittee III agreed to answer a number of questions raised by the Referral. Each member of the Subcommittee was assigned a research topic and asked to report their findings on or before April 1, 2019.1 The Chair’s question assigned to this
subcommittee member was “Does issuing an investigative subpoena trigger reciprocal
discovery? If so, why? If not, why not?” Please show your work.2”
To address and issue pertaining to reciprocal discovery it is necessary to turn first to Florida Rule
of Criminal Procedure 3.220 which governs the discovery obligations of the parties. Specifically,
and in pertinent part, Fla. R. Crim. P. 3.220(a) states:
(a) Notice of Discovery.
After the filing of the charging document, a defendant may elect to participate in the discovery process provided by these rules, including the taking of discovery depositions, by filing with the court and serving on the prosecuting attorney a “Notice of Discovery” which shall bind both the prosecution and defendant to all discovery procedures contained in these rules. Participation by a defendant in the discovery process, including the taking of any deposition by a defendant or the filing of a public records request under chapter 119, Florida Statutes, for law enforcement records relating to the defendant’s pending prosecution, which are nonexempt as a result of a codefendant’s participation in discovery, shall be an election to participate in discovery and triggers a reciprocal discovery obligation for the defendant. If any defendant knowingly or purposely shares in discovery obtained by a codefendant, the defendant shall be deemed to have elected to participate in discovery.
1 Subsequent to the assignment Chair Scavone submitted a memo and advised committee members to pause their research. This committee member was then advised that the subcommittee would benefit from further research on the assigned issues. This accounts for the delinquency of the instant submission. 2 To be fair that last part was added by this subcommittee member.
June 28, 2019 Criminal Procedure Rules Committee 144 The Chair has suggested in previous conversations with this subcommittee member that he believes that an investigative subpoena as suggested by the proposal before the committee would be comparable to a public records request pursuant to Florida Statute §119.3 If the investigative subpoenas suggested through this referral is considered comparable to a public records request the
Chair’s point is well taken. That said, as outlined in the above rule if an investigative subpoena were considered similar to a public records request the timing of the subpoena would dictate whether reciprocal discovery becomes applicable. 3.220(a) definitively states that “After the filing of the charging document, a defendant may elect to participate in the discovery process…”
(Emphasis added). The prosed rule as submitted indicates that an investigative subpoena could be issued following arrest, but prior to an information being filed. Based upon 3.220(a) if the subpoena was issued prior to the arraignment then no reciprocal discovery would apply.
The above analysis, however, would only apply if the committee were to find that an investigative subpoena were analogous to a public records request. Conversely, if the committee were to find that a subpoena as suggested by the current proposal is more akin to a Subpoena Duces
Tecum then reciprocal discovery may not apply. A subpoena duces tecum for tangible items is governed by 3.361(c). As this committee member reads the proposal, the investigative subpoena would be nearly identical to a subpoena duces tecum, but for the notice to the State. The issuance of a subpoena duces tecum under 3.361 does not trigger reciprocal discovery. Contrary to a Fla.
R. Crim. P. 3.220(a), which specifically indicates that a public records request triggers discovery obligations, 3.220 and 3.361 are both silent as to the whether a subpoena would have the same effect. As such, and pursuant to the rule of statutory construction and the unambiguous language of 3.361 if these investigative subpoenas are deemed more aligned with a subpoena duces tecum
3 Henderson v. State 745 So.2d 319 (Fla. 1999).
2
June 28, 2019 Criminal Procedure Rules Committee 145 than a public records request than they would not trigger reciprocal discovery.4 Either way it seems that should the rule proceed it may benefit from clarification in the language itself or in a committee note.
Respectfully Submitted,
Jude M. Faccidomo
4 Barro v. School Board of Pinellas County 975 So.2d 1116 (Fla. 2008).
3
June 28, 2019 Criminal Procedure Rules Committee 146 MEMO
TO: Attorneys on Subcommittee III FROM: Cynthia Green RE: Thoughts on the Impact of Amendment 6 (Marsy’s Law) on the proposed rule to permit defense attorneys to obtain ex parte subpoena duces tecum DATE: February 1, 2019
Introduction to Amendment 6
The passage of Amendment 6 (Marsy’s Law) has amended section 16 to read as follows (language added is underlined, language deleted is stricken through):
ARTICLE I DECLARATION OF RIGHTS
SECTION 16. Rights of accused and of victims.–
(a) In all criminal prosecutions the accused shall, upon demand, be informed of the nature and cause of the accusation, and shall be furnished a copy of the charges, and shall have the right to have compulsory process for witnesses, to confront at trial adverse witnesses, to be heard in person, by counsel or both, and to have a speedy and public trial by impartial jury in the county where the crime was committed. If the county is not known, the indictment or information may charge venue in two or more counties conjunctively and proof that the crime was committed in that area shall be sufficient; but before pleading the accused may elect in which of those counties the trial will take place. Venue for prosecution of crimes committed beyond the boundaries of the state shall be fixed by law.
(b) To preserve and protect the right of crime victims to achieve justice, ensure a meaningful role throughout the criminal and juvenile justice systems for crime victims, and ensure that crime victims’ rights and interests are respected and protected by law in a manner no less vigorous than protections afforded to criminal defendants and juvenile delinquents, every victim is entitled to the following rights, beginning at the time of his or her victimization:
(1) The right to due process and to be treated with fairness and respect for the victim’s dignity.
(2) The right to be free from intimidation, harassment, and abuse.
(3) The right, within the judicial process, to be reasonably protected from the accused and any person acting on behalf of the accused. However, nothing contained herein is intended to create a special relationship between the crime victim and any law enforcement agency or office absent a special relationship or duty as defined by Florida law.
June 28, 2019 Criminal Procedure Rules Committee 147 (4) The right to have the safety and welfare of the victim and the victim’s family considered when setting bail, including setting pretrial release conditions that protect the safety and welfare of the victim and the victim’s family.
(5) The right to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information of the victim.
(6) A victim shall have the following specific rights upon request:
a. The right to reasonable, accurate, and timely notice of, and to be present at, all public proceedings involving the criminal conduct, including, but not limited to, trial, plea, sentencing, or adjudication, even if the victim will be a witness at the proceeding, notwithstanding any rule to the contrary. A victim shall also be provided reasonable, accurate, and timely notice of any release or escape of the defendant or delinquent, and any proceeding during which a right of the victim is implicated.
b. The right to be heard in any public proceeding involving pretrial or other release from any form of legal constraint, plea, sentencing, adjudication, or parole, and any proceeding during which a right of the victim is implicated.
c. The right to confer with the prosecuting attorney concerning any plea agreements, participation in pretrial diversion programs, release, restitution, sentencing, or any other disposition of the case. d. The right to provide information regarding the impact of the offender’s conduct on the victim and the victim’s family to the individual responsible for conducting any presentence investigation or compiling any presentence investigation report, and to have any such information considered in any sentencing recommendations submitted to the court. e. The right to receive a copy of any presentence report, and any other report or record relevant to the exercise of a victim’s right, except for such portions made confidential or exempt by law. f. The right to be informed of the conviction, sentence, adjudication, place and time of incarceration, or other disposition of the convicted offender, any scheduled release date of the offender, and the release of or the escape of the offender from custody. g. The right to be informed of all postconviction processes and procedures, to participate in such processes and procedures, to provide information to the release authority to be considered before any release decision is made, and to be notified of any release decision regarding the offender. The parole or early release authority shall extend the right to be heard to any person harmed by the offender.
h. The right to be informed of clemency and expungement procedures, to provide information to the governor, the court, any clemency board, and other authority in these procedures, and to have that information considered before a clemency or expungement decision is made; and to be notified of such decision in advance of any release of the offender.
2
June 28, 2019 Criminal Procedure Rules Committee 148 (7) The rights of the victim, as provided in subparagraph (6)a., subparagraph (6)b., or subparagraph (6)c., that apply to any first appearance proceeding are satisfied by a reasonable attempt by the appropriate agency to notify the victim and convey the victim’s views to the court.
(8) The right to the prompt return of the victim’s property when no longer needed as evidence in the case.
(9) The right to full and timely restitution in every case and from each convicted offender for all losses suffered, both directly and indirectly, by the victim as a result of the criminal conduct.
(10) The right to proceedings free from unreasonable delay, and to a prompt and final conclusion of the case and any related postjudgment proceedings. a. The state attorney may file a good faith demand for a speedy trial and the trial court shall hold a calendar call, with notice, within fifteen days of the filing demand, to schedule a trial to commence on a date at least five days but no more than sixty days after the date of the calendar call unless the trial judge enters an order with specific findings of fact justifying a trial date more than sixty days after the calendar call.
b. All state-level appeals and collateral attacks on any judgment must be complete within two years from the date of appeal in non-capital cases and within five years from the date of appeal in capital cases, unless a court enters an order with specific findings as to why the court was unable to comply with this subparagraph and the circumstances causing the delay. Each year, the chief judge of any district court of appeal or the chief justice of the supreme court shall report on a case-by-case basis to the speaker of the house of representatives and the president of the senate all cases where the court entered an order regarding inability to comply with this subparagraph. The legislature may enact legislation to implement this subparagraph.
(11) The right to be informed of these rights, and to be informed that victims can seek the advice of an attorney with respect to their rights. This information shall be made available to the general public and provided to all crime victims in the form of a card or by other means intended to effectively advise the victim of their rights under this section.
(c) The victim, the retained attorney of the victim, a lawful representative of the victim, or the office of the state attorney upon request of the victim, may assert and seek enforcement of the rights enumerated in this section and any other right afforded to a victim by law in any trial or appellate court, or before any other authority with jurisdiction over the case, as a matter of right. The court or other authority with jurisdiction shall act promptly on such a request, affording a remedy by due course of law for the violation of any right. The reasons for any decision regarding the disposition of a victim’s right shall be clearly stated on the record.
(d) The granting of the rights enumerated in this section to victims may not be construed to deny or impair any other rights possessed by victims. The provisions of this section apply throughout criminal and juvenile justice processes, are self-executing, and do not require implementing legislation. This section may not be construed to create any cause of action for damages against the state or a political subdivision of the state, or any officer, employee, or agent of the state or its political subdivisions. 3
June 28, 2019 Criminal Procedure Rules Committee 149
(e) As used in this section, a “victim” is a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act or against whom the crime or delinquent act is committed. The term “victim” includes the victim’s lawful representative, the parent or guardian of a minor, or the next of kin of a homicide victim, except upon a showing that the interest of such individual would be in actual or potential conflict with the interests of the victim. The term “victim” does not include the accused. The terms “crime” and “criminal” include delinquent acts and conduct Victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.
Thoughts on the Impact of Amendment 6 on the Proposed Rule to allow defense counsel to obtain exparte subpoena duces tecum
Subsections (b)(2), (b)(3), (b)(5), and (b)(6)b will likely create an issue when attempting to modify the rules of criminal procedure to allow defense attorneys to obtain the right to attain exparte subpoenas duces tecum. The presence and input of a prosecutor would be helpful in preventing abuse, harassment, and intimidation of the victim that could exist with certain subpoena requests. A vicitm is protected from such harassment, intimidation, and abuse as outlined in (b)(2). The input of the prosecutor at a court hearing will also help to reasonably protect the accused as outline in (b)(3) without creating a lawyer client type relationship between prosecutor and victim. Specific language about locating or harassing the victim in (b)(5) suggests that one goal of this amendment is to prevent the defendant from obtaining information that would be used to locate or harass the victim which could occur depending on the item sought. Given the broad wording of (b)(6)b the victim may have a constitutional right to address the court (individually or through counsel) at almost any stage of the process including a request by defense counsel for a subpoena duces tecum. A victim should not be in a position to go one-on-one with defense counsel in a courtroom, nor should a victim be in a position where they would feel compelled to retain their own attorney to enforce the rights that exists within this amendment. Overall, the prosecutor, who is familiar with the law and courtroom procedure, is in a better position than the average victim to stand up for the victim in a courtroom and object to a subpoena that violates their rights under this amendment.
4
June 28, 2019 Criminal Procedure Rules Committee 150 Question: Should the prosecuting attorney’s office be noticed if a recipient moves to quash the subpoena? If so, why? If not, why not? Current Rules and Law Regarding Depositions Rule of Criminal Procedure 3.220 currently incorporates the deposition procedures and rules from the Rules of Civil Procedure: Except as provided herein, the procedure for taking the deposition, including the scope of the examination, and the issuance of a subpoena for deposition by an attorney of record in the action, shall be the same as that provided in the Florida Rules of Civil Procedure and section 48.031, Florida Statutes.
Fla. R. Crim. P. 3.220. The right to take discovery depositions is not triggered until the State files formal charges. The scope of those depositions is further impacted by the parties’ witness lists.
In the rules of Civil Procedure, the issuance of subpoenas duces tecum to non-parties is controlled by Civil Rule of Procedure 1.351 which states as follows: (a) Request; Scope. A party may seek inspection and copying of any documents or things within the scope of rule 1.350(a) from a person who is not a party by issuance of a subpoena directing the production of the documents or things when the requesting party does not seek to depose the custodian or other person in possession of the documents or things. This rule provides the exclusive procedure for obtaining documents or things by subpoena from nonparties without deposing the custodian or other person in possession of the documents or things pursuant to rule 1.310. (b) Procedure. A party desiring production under this rule shall serve notice as provided in Florida Rule of Judicial Administration 2.516 on every other party of the intent to serve a subpoena under this rule at least 10 days before the subpoena is issued if service is by delivery or e-mail and 15 days before the subpoena is issued if the service is by mail. The proposed subpoena shall be attached to the notice and shall state the time, place, and method for production of the documents or things, and the name and address of the person who is to produce the documents or things, if known, and if not known, a general description sufficient to identify the person or the particular class or group to which the person belongs; shall include a designation of the items to be produced; and shall state that the person who will be asked to produce the documents or things has the right to object to the production under this rule and that the person will not be required to surrender the documents or things. A copy of the notice and proposed subpoena shall not be furnished to the person upon whom the subpoena is to be served. If any party serves an objection to production under this rule within 10 days of service of the notice, the documents or things shall not be produced pending resolution of the objection in accordance with subdivision (d).
June 28, 2019 Criminal Procedure Rules Committee 151 Fla. R. Civ. P. 1.351 (emphasis added). The Rule further provides that,
(c) Subpoena. If no objection is made by a party under subdivision (b), an attorney of record in the action may issue a subpoena or the party desiring production shall deliver to the clerk for issuance a subpoena together with a certificate of counsel or pro se party that no timely objection has been received from any party, and the clerk shall issue the subpoena and deliver it to the party desiring production.
Fla. R. Civ. P. 1.351 (emphasis added). Under the Civil Rules, a party may object to a subpoena duces tecum to a non-party, even if the non-party does not.
[T]he question of a party's standing to seek an order quashing a subpoena duces tecum directed to another. Rule 1.410(d) RCP1 which pertains to a *34 subpoena for taking depositions, expressly provides that the subpoena is subject to subdivision (b) of the same rule, and to subdivision (b) of Rule 1.310 RCP. Looking at Rule 1.410(b) RCP2 it is noted that it contains no prohibition against a party seeking an order to quash a subpoena which is unreasonable and oppressive. Looking at Rule 1.310(b) RCP,3 it is noted that it expressly permits a motion for protective order to be made by any party as well as the person to be examined. Considering these several rules in pari materia, we conclude that the defendants had standing to seek an order quashing the subpoena duces tecum on the grounds that it was unreasonable and oppressive as to the witness. We might add that this view accommodates a practical approach to the not unusual situation where a witness, served with a subpoena duces tecum which he feels to be unreasonable and oppressive, will simply complain to the other party of the hardship, and that party in turn will more likely than not present the issue to the court without the necessity of the witness being put to the trouble and expense of presenting a motion on his own behalf.
Sunrise Shopping Ctr., Inc. v. Allied Stores Corp., 270 So. 2d 32, 33–34 (Fla. Dist. Ct. App. 1972) (emphasis added).
“[P]ersonal finances are among those private matters kept secret by most people.” Woodward v. Berkery, 714 So.2d 1027, 1035 (Fla. 4th DCA 1998) (citing Winfield v. Div. of Pari-Mutuel Wagering, 477 So.2d 544 (Fla.1985)). The right of privacy set forth in article 1, section 23, of the Florida Constitution “undoubtedly expresses a policy that compelled disclosure through discovery be limited to that which is necessary for a court to determine contested issues.” Id. at 1036. It follows “that the disclosure of personal financial information may cause irreparable harm to a person forced to disclose it, in a case in which the information is not relevant.” Straub v. Matte, 805 So.2d 99, 100 (Fla. 4th DCA 2002).
For these reasons, this court has said:
June 28, 2019 Criminal Procedure Rules Committee 152 A protective order should be granted when the pleadings, at the time a trial court rules upon a motion for protective order, indicate that the financial records of a nonparty are not related to any pending claim or defense, and do not indicate that the information is shown to be reasonably calculated to lead to the discovery of admissible evidence. Walter v. Page, 638 So.2d 1030, 1031 (Fla. 2d DCA 1994) (citing Jerry's South, Inc. v. Morran, 582 So.2d 803 (Fla. 1st DCA 1991)).
Rappaport v. Mercantile Bank, 17 So. 3d 902, 906 (Fla. Dist. Ct. App. 2009).
In Williams, the defendant sought the same relief as petitioner. Id. He asked the court to issue subpoenas duces tecum in secret, without disclosing to the state the names of the persons to whom the subpoenas were directed. Id. The Williams court denied the request because there was no authority for issuing a secret subpoena duces tecum and because the Florida Supreme Court implicitly rejected a defendant's entitlement to such relief in Heath v. Becktell, 327 So.2d 3, 5 (Fla.1976). Id.
Jackson v. State, 202 So. 3d 97, 100 (Fla. Dist. Ct. App. 2016).
Analysis Preliminarily, Under the current Rules, Civil Rule of Procedure 1.351 states that subpoenas issued under that rule are to receive notice of intent and are given the opportunity to object, even to subpoenas to non-parties. The Florida Supreme Court in Jackson specifically rejected the notion that a criminal defendant had the right to seek ex parte subpoena duces tecums. Therefore, I do not believe there is any legal authority to grant the power to issue ex parte subpoenas duces tecum as the State’s authority is specifically conferred by statute granting the State Attorney’s Office investigatory powers. Assuming that the Committee still proceeded with the creation of the rule as previously presented, I see several issues regarding the provision not noticing the State when the non-party moves to quash the subpoena because the key issue before the court in these cases is relevance. These issues also apply to the Rule’s ex parte nature in general for that matter. First, the proposed rule to establish ex parte subpoenas duces tecum contemplates extending the right to issue a subpoena duces tecum to before a charging document is filed. However, Rappaport and other case law states that the court is to determine relevancy based on the pleadings. Prior to the filing of an information, there is no pleading by the State to establish the boundaries of relevance as contemplated by the courts. At most there is a charging affidavit or an arrest warrant affidavit filed by non-lawyer law enforcement officers. These documents frequently contain charges
June 28, 2019 Criminal Procedure Rules Committee 153 which are not ultimately filed on by the state and the State also frequently files charges that are not included in the original police charges. Also, the documents filed by police do not necessarily set out specific date ranges of the criminal conduct. Therefore, the police documents are not equivalent to an Information or Indictment. Second, in a criminal case, very little information about the facts of the case are readily available to both the Court and to non-parties. Usually only the charging document and a charging affidavit or warrant affidavit may be publicly available. In some jurisdictions, such as the Ninth Judicial Circuit, the State’s Witness Lists are not filed with the Court so they are not accessible to the Court or non-parties either. However, there is often significant additional discovery possessed by the State setting forth the facts and circumstances of the charged conduct. Therefore, for a non-party to challenge the relevance of a subpoena duces tecum would be very difficult without the assistance of the prosecutor. This is particularly true within the context of subpoenas being issued pre-filing, because the defense does not even have discovery yet. Because of the limited information about the facts and witnesses available to the court in criminal cases, especially pre-filing, the Court is not in an ideal position to fully and fairly test relevancy. Third, the Rappaport case discusses how the Constitutional privacy rights of non-parties are implicated in the issuance of a subpoena duces tecum. The Court notes that due to the possibility of irreparable harm to non-parties’ interests from the disclosure of private information, it is imperative to restrict disclosures to only relevant evidence or to matters reasonably calculated to lead to admissible evidence. Rappaport, 17 So. 3d at 908. In Rousso, the Court denied a subpoena duces tecum in part finding that, the information sought could be more readily discovered by discovery from a party, so therefore the party requesting the subpoena could not establish that their need for the subpoena outweighed the non-party’s right to privacy. Rousso, 146 So.3d at 72. It is difficult to see how the Court could properly apply the balancing test required under Russo without the State present, particularly pre-filing, pre-discovery. The only argument against notification to the State goes back to the argument in support of the proposed rule, that the defense should not have to tip its hand to the state when they are researching theories of defense etc.
June 28, 2019 Criminal Procedure Rules Committee 154 Date: March 20, 2019 To: Subcommittee III From: Robert Scavone Jr., Chair CC: Sheila Loizos, CPRC Chair; Heather Telfer Re: Referral 18-10-III (Defense Investigative Subpoena)
At a meeting on January 4, 2019, Subcommittee III agreed to answer a number of questions raised by the Referral. Each member of the Subcommittee was assigned a research assignment and asked to report their findings on or before April 1, 2019. I volunteered to answer the threshold questions: What is the statutory or constitutional basis for the proposed rule? And, relatedly, does the proposed rule conflict with (or is it precluded by) chapter 27 (specifically, section 27.04,
Florida Statutes)?1
More precisely, the question is whether the Florida Supreme Court (through the
Committee) has the authority to promulgate a rule, which gives the accused the right to issue an
ex parte investigative subpoena at any time after the accused is arrested. The proponents of the
proposed rule argue that such a rule would give the accused the same right (authority) that the
State is permitted to exercise under section 27.04, Florida Statutes.2 The answer turns on whether
1 Research did not uncover a statutory analog with regard to the right of the accused to issue investigative subpoenas. It has been argued by the proponents of the proposed rule that “due process” requires that the accused be permitted to issue investigative subpoenas. Research did not reveal any authority for that proposition.
2 “The state attorney shall have summoned all witnesses required on behalf of the state; and he or she is allowed the process of his or her court to summon witnesses from throughout the state to appear before the state attorney at such convenient places in the state attorney’s judicial circuit and at such convenient times as may be designated in the summons, to testify before him or her as to any violation of the law upon which they may be interrogated, and he or she is empowered to administer oaths to all witnesses summoned to testify by the process of his or her court or who may voluntarily appear before the state attorney to testify as to any violation or violations of the law.” Fla. Stat., 27.04. The State’s authority to issue investigative subpoenas is statutory. Imparato v. Spicola, 238 So. 2d 503, 506 (Fla. 2d DCA 1970); State v. Doe, 592 So. 2d 1121, 1122 (Fla. 2d DCA 1991), approved, 634 So. 2d 613 (Fla. 1994).
June 28, 2019 Criminal Procedure Rules Committee 155 the proposed rule grants to the accused the authority to investigate alleged criminal conduct, or
whether the proposed rule is merely a rule of practice and procedure, which applies during
adjudicatory proceedings. The proposed rule would confers a substantive right to investigate
alleged criminal conduct; therefore, it does not appear that the Committee has the authority to
promulgate the proposed rule.3
Petition of Ezell, 446 So. 2d 253 (Fla. 5th DCA 1984), is instructive. In that case, Ezell
claimed that the Legislature, by enacting section 542.28, Florida Statues, had promulgated a rule
of procedure, thus violating the separation of powers. The district court disagreed. The court
specifically addressed whether section 542.28—which authorizes the Attorney General to issue
civil investigative demands in antitrust investigations—unconstitutionally infringed on the Florida
Supreme Court’s rule-making authority. The court explained that the statute “is a legislatively
defined investigative tool through which the attorney general may exercise his obligation as chief
legal officer of the state, to investigate, independently of any court proceedings, suspected
violations of the state or federal antitrust laws.” Id. at 255 (emphasis added). The statute has
nothing to do with practice and procedure in court. Id. Important to the present issue, the court
analogized section 542.28 and section 27.04:
[Section 542.28] merely provides an investigative tool, prior to any court action, analogous (sic) to the investigative powers of state attorneys under section 27.04,
3 “Procedural law . . . has been described as the legal machinery by which substantive law is made effective.” State v. Garcia, 229 So. 2d 236, 238 (Fla. 1969); see also Benyard v. Wainwright, 322 So. 2d 473, 475 (Fla. 1975) (“Procedural law concerns the means and method to apply and enforce [substantive] duties and rights.”). “Substantive law prescribes the duties and rights under our system of government.” Wainwright, 322 So. 2d at 475; see also Garcia, 229 So. 2d at 238 (“Substantive law has been defined as that part of the law which creates, defines, and regulates rights, or that part of the law which courts are established to administer.”). The Florida Constitution empowers the Florida Supreme Court to promulgate rules of practice and procedure. State v. Raymond, 906 So. 2d 1045, 1048 (Fla. 2005). Matters of substantive law, however, are within the Legislature’s bailiwick. Id. That is, the Court’s rule-making authority “does not extend to substantive rights.” Boyd v. Becker, 627 So. 2d 481, 484 (Fla. 1993).
2
June 28, 2019 Criminal Procedure Rules Committee 156 Florida Statutes (1981). That those powers exist independent of court action is well recognized. An investigation to determine whether any of the laws of the state have been violated is not a proceeding in court, and thus does not regulate practice and procedure in the courts so as to conflict with Article V, section 2(a), Florida Constitution.
Id. (emphasis added) (citation omitted).
In distinguishing between adjudicatory proceedings (to which procedural rules apply) and
investigatory proceedings (to which they do not), the court explained that the former “tests
[discovered and produced] evidence upon a record in an adversary proceeding before an
independent hearing examiner to determine whether [the evidence] sustains whatever charges are based upon it.” The latter, on the other hand, “discovers and produces [the] evidence.” Id. (internal quotation marks and citation omitted). The court ultimately held that “the civil investigative demand permitted by section 542.28 is not an adjudicatory proceeding and is not a rule of practice and procedure in court[.]” Id. at 255–56 (emphasis added).
The proponents of the proposed rule claim that the rule will allow the accused to marshal evidence, which may exculpatory. Under the district court’s analysis in Ezell, such a rule is investigatory in nature and not a rule of practice or procedure. Therefore, the Committee is without authority to promulgate the proposed rule. Indeed, the authority to investigate alleged criminal activity under section 27.04 is exclusively the province of the State. See Imparato v. Spicola, 238
So. 2d 503, 506 (Fla. 2d DCA 1970) (interpreting section 27.04 and explaining that the state attorney is “the investigatory and accusatory arm of our judicial system of government”); State v.
Doe, 592 So. 2d 1121, 1122 (Fla. 2d DCA 1991), approved, 634 So. 2d 613 (Fla. 1994) (“The state attorney also has the statutory right [under section 27.04] to summon witnesses to testify
3
June 28, 2019 Criminal Procedure Rules Committee 157 concerning any violation of the law.”) (emphasis added). That authority has not been granted to
the State by the Committee.4
Also of note, the discovery rules under 3.220 kick in “after” a “charging document” has
been filed. See 3.220(a), (b)(4), (c)(1), and (h)(1). The Committee Note from the 1992 amendment defines “charging document” to include an indictment, information, or notice to appear. The
proposed rule would permit the accused to issue an investigative subpoena after arrest but before
formal charges. This is contrary to the discovery rules, and, if the proposed rule is going to be
considered, Subcommittee III is not the proper venue.
The proponents of the proposed rule are seeking, for the accused, a mirror image of section
27.04. The Legislature, not the Florida Supreme Court, is the state entity constitutionally
authorized to confer such a right.
4 The Committee has not promulgated a rule dealing with or implementing section 27.04. In fact, the statute is mentioned in the Rules only twice. First, under 3.220(h): the prohibition against taking depositions in misdemeanor and criminal traffic cases is not applicable where the state is exercising its authority under 27.04. And second, under the 1968 Committee Notes for 3.220: A view was expressed that some limitation should be placed on the state’s rights under sections 27.04 and 32.20, Florida Statutes, which allow the prosecutor to take all depositions unilaterally at any time. It was agreed by all members of the subcommittee that this right should not be curtailed until some specific time after the filing of an indictment, information, or affidavit, because circumstances sometimes require the filing of the charge and a studied marshalling of evidence thereafter. Criticism of the present practice lies in the fact that any time up to and during the course of the trial the prosecutor can subpoena any person to the privacy of the prosecutor’s office without notice to the defense and there take a statement of such person under oath. The subcommittee was divided, however, on the method of altering this situation and the end result was that this subcommittee itself should not undertake to change the existing practice, but should make the Supreme Court aware of this apparent imbalance.
The State’s authority to investigate derives from section 27.04, not the Florida Supreme Court.
4
June 28, 2019 Criminal Procedure Rules Committee 158 Date: March 29, 2019 To: Subcommittee III, Criminal Rules—Heather Telfer From: Varinia Van Ness Re: Assignment for Sub-committee III regarding ex parte subpoenas
The assignment is:
How would the proposed rule apply to co-defendants? For example, what results if the defendant subpoenas a co-defendant and the co-defendant turns over evidence that inculpates the co-defendant? Will the defendant be obligated to turn that evidence over to the prosecuting attorney’s office?
Answer:
A) The State has the ability to issue immunity under investigative subpoenas. No immunity has been contemplated under the proposed defense investigative subpoenas. A co-defendant or his/her attorney can file a protective order, as no one can be compelled to provide their own incriminating evidence.
B) Because there currently is no obligation for any defendant to turn any evidence to the State, incriminating or otherwise, I would say that an investigative subpoena issued by a defendant would not create a duty for the defense to help the State build their case.
June 28, 2019 Criminal Procedure Rules Committee 159 THE FLORIDA BAR CRIMINAL PROCEDURE RULES COMMITTEE
SUBCOMMITTEE ACTION REPORT
TO: Sheila Ann Loizos
FROM: Richard Mantei
Please be advised that Subcommittee V conducted a meeting on April 4, 2019, by conference call to discuss docket number 19-02-V.
Subcommittee attendance was as follows:
Member Name Present Not Present Richard Mantei, Chair X Hon. Wendy Berger X Berdene Beckles X Hon. Gary Bergosh X Jason Blank X Jason Bloch X Diana Bock X Hunter Chamberlin X Doug Duncan X Adrienne Ellis X Nicole Hardin X Shaquana Harper X
Additional participants included: Krys Godwin, Bar Liaison Sheila Ann Loizos, Committee Chair Robert Scavone, Committee Member Paul Pettrilli, West Palm Beach Public Defender’s Office Cary Haughwout, West Palm Beach Public Defender’s Office Claire Madill, West Palm Beach Public Defender’s Office
The Subcommittee took the following action:
1. Determined that the submission is within the scope of Subcommittee authority. YES
2. Made the following decisions: Amend Rule 3.720 with an additional subsection that provides: “In all felony cases, other than those where the specific sentence is contemplated by a plea agreement between the prosecution and the defense, the court shall state on the record its reasons for imposing the sentence.”
1 June 28, 2019 Criminal Procedure Rules Committee 160 3. Prepared the attached written report.
Richard Mantei began the meeting requesting the assistant public defenders who proposed the amendment to discuss their proposal in greater detail. They were specifically asked why they did not limit their proposed amendment to felonies, to which they stated that misdemeanor sentences matter to misdemeanor defendants; it is good training for county court judges since they often times become circuit court judges. Mantei pointed out that the vast majority of sentences in county court are the result of a plea to the court without a negotiated sentence.
Jason Bloch proposed an alternative to the requested amendment, which modified the requested language, limited the amendment to felony sentences only and excluded sentences contemplated by plea bargains. Although Judge Berger was not present, the Chair noted that she supported the language proposed by Jason Bloch limiting the proposed amendment to felony cases where the sentence was not negotiated. This proposal passed unanimously.
The arguments in favor of the proposal were similar to those contained in the original written proposal, which included that eleven other states have such a rule; transparency and the appearance of a just procedure was important to engender trust from all the parties in the outcome of a sentencing proceeding and the change would assist appellate courts in addressing challenged sentences.
The arguments of the dissenters were that judges are free to state their reasons under the current rules but should not be compelled to do so; the vast majority of states do not have such a rule; the proposal is better suited to a statutory rather than a rule-based determination as is done in the federal system and that the proposed rule moves disputes over the sufficiency and/or legitimacy of a judge’s reasons for a sentence from the trial level to the appellate level.
After the discussion, the subcommittee voted 5 to 2 to adopt the proposed language and recommend to the Committee that the rule amendment be proposed to the Florida Supreme Court. Specifically, Beckles, Bloch, Chamberlin, Duncan and Hardin voted in favor of the proposed rule amendment and Mantei and Ellis voted against it.
The Subcommittee Chair is prepared to report to the full Committee at the meeting on June 28, 2019.
Richard Mantei____ Subcommittee Chair
cc: Committee Chair Committee Secretary The Florida Bar Liaison
2 June 28, 2019 Criminal Procedure Rules Committee 161 rev. 10/14
3 June 28, 2019 Criminal Procedure Rules Committee 162
PROPOSED
AMENDMENT
Fla. R. Crim. P. 3.720:
Requiring a Sentencing Explanation
Presented to the Criminal Procedure Rules Committee of the Florida Bar
CLAIRE MADILL Office of the Public Defender, Assistant Public Defender 15th Judicial Circuit 421 3rd Street CAREY HAUGHWOUT West Palm Beach, FL 33401 Public Defender (561) 355-7600 [email protected] PAUL PETILLO [email protected] Chief, Appellate Division
June 28, 2019 Criminal Procedure Rules Committee 163
INTRODUCTION
Since the late-1970s, a strong nationwide trend to require reasons for sentences has
existed.1 Judges, lawyers, scholars and others in the criminal justice system “have recognized
the problem of unfettered judicial discretion in the sentencing process, and have almost
uniformly called for the requirement that a trial court articulate the reasons for its sentence.”2
We propose that the Rules Committee make explicit what Florida appellate courts have implicitly recommended and bring Florida in line with many other states on this issue.
Specifically, we recommend that Florida Rule of Criminal Procedure 3.720 be amended to add a subsection requiring trial courts to provide a sentencing explanation.
This proposal is divided into four sections. The first section provides proposed language for the amendment. The second section discusses the legal and practical bases for the request.
The third section responds to potential criticisms of the proposal. The fourth section explains that this is a procedural rule that can be adopted by the Florida Supreme Court.
1 Arthur W. Campbell, Law of Sentencing § 10:5 (2018).
2 Commonwealth v. Riggins, 377 A.2d 140, 146 (Pa. 1977). 1
June 28, 2019 Criminal Procedure Rules Committee 164 I. Proposed Amendment
The proposed amendment could be easily added to an existing rule, Rule 3.720. As
amended, the rule could read:
Rule 3.720. Sentencing Hearing
As soon as practicable after the determination of guilt and after the examination of any presentence reports, the sentencing court shall order a sentencing hearing. At the hearing:
(a) The court shall inform the defendant of the finding of guilt against the defendant and of the judgment and ask the defendant whether there is any legal cause to show why sentence should not be pronounced. The defendant may allege and show as legal cause why sentence should not be pronounced only:
(1) that the defendant is insane;
(2) that the defendant has been pardoned of the offense for which he or she is about to be sentenced;
(3) that the defendant is not the same person against whom the verdict or finding of the court or judgment was rendered; or
(4) if the defendant is a woman and sentence of death is to be pronounced, that she is pregnant.
(b) The court shall entertain submissions and evidence by the parties that are relevant to the sentence.
(c) In cases where guilt was determined by plea, the court shall inform itself, if not previously informed, of the existence of plea discussions or agreements and the extent to which they involve recommendations as to the appropriate sentence.
(d) The court shall state on the record its reasons for selecting the particular sentence.
(d)(e)(1) If the accused was represented by a public defender or other court appointed counsel, the court shall notify the accused of the imposition of a lien pursuant to section 938.29, Florida Statutes. The amount of the lien shall be given and a judgment entered in that amount against the accused. Notice of the accused's right to a hearing to contest the amount of the lien shall be given at the time of sentence.
(2) If the accused requests a hearing to contest the amount of the lien, the court shall set a hearing date within 30 days of the date of sentencing.
2
June 28, 2019 Criminal Procedure Rules Committee 165 II. Justifications for Recommendation This recommendation does not come out of left field. Several Florida appellate judges
have lamented the lack of a sentencing explanation requirement; several states already have
similar rules of criminal procedure; and this criminal procedure rule has long been recommended
by the American Bar Association. There are also many legal and practical bases for adding such
a requirement, including that it: (1) helps reduce the documented racial disparity in Florida
sentencing: (2) helps combat Florida’s chronicled problem with unwarranted sentencing
disparities; (3) ensures procedural due process; (4) preserves the constitutional right to appellate
review; (5) assists legislators; (6) improves public perception of the courts; and (7) comports
with the reality that judges must explain far less important decisions.
A. Florida judges have affirmed the importance of such a rule
Several Florida appellate judges have recognized the prudence behind requiring a sentencing explanation. Sentencing explanations are the “preferred method.” Charles v. State,
204 So. 3d 63, 69 (Fla. 4th DCA 2016) (Levine, J., concurring). They “lend legitimacy to the court’s decisions and foster a public confidence in our judicial system.” Goldstein v. State, 154
So. 3d 469, 470 (Fla. 2d DCA 2015). They “support the reasonableness and legitimacy of [the sentencing] decision to both the public and to the reviewing court.” Id. at 476. Judicial silence, on the other hand, “operates to conceal sentencing misconduct,” Mendoza-Magadan v. State, 217
So. 3d 112, 114 (Fla. 4th DCA 2017) (Gross, J., concurring), and “presents an insurmountable obstacle to establishing a record of a constitutional violation in sentencing.” Alfonso-Roche v.
State, 199 So. 3d 941, 952 (Fla. 4th DCA 2016) (Gross, J., concurring). “Similarly, sentences imposed without sufficient explanation can mask implicit biases, which are activated involuntarily and which generally occur without our awareness or intentional control.” Id.
(Gross, J., concurring) (quotation marks and citation omitted).
3
June 28, 2019 Criminal Procedure Rules Committee 166 B. Many states have a similar rule of criminal procedure
The proposed amendment is not unusual. At least eight states have rules of procedure
requiring sentencing explanations. Our proposal is based upon an Iowa rule of procedure, which
states: “The court shall state on the record its reason for selecting the particular sentence.” Iowa
R. Crim. P. 2.23(3)(d). Several other states that have similar rules – and any of these states could
be used as a starting point for Florida’s own rule:3
● Alaska: “At the sentencing hearing, the judge shall state clearly the precise terms of the sentence, the reasons for selecting the particular sentence, and the purposes the sentence is intended to serve.” Alaska R. Crim. P. 32.2(c)(1). ● Connecticut: “In cases where sentence review is available, the judicial authority shall state on the record, in the presence of the defendant, the reasons for the sentence imposed.” Conn. Practice Book 43-10(6). ● Iowa: “The court shall state on the record its reason for selecting the particular sentence.” Iowa R. Crim. P. 2.23(3)(d) ● Maine: “If the court imposes a sentence of one year or more, it shall set forth on the record the reasons for the sentence. This requirement shall also apply in cases in which there has been a plea agreement.” Me. R. Crim. P. 32(a)(3). ● Maryland: “Reasons. The court ordinarily shall state on the record its reasons for the sentence imposed.” Md. Rule 4-342(f). ● New Jersey: “At the time sentence is imposed the judge shall state reasons for imposing such sentence including findings pursuant to the criteria for withholding or imposing imprisonment or fines . . .; the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence; and, if applicable, the reasons for ordering forfeiture of public office, position or employment. . . .” N.J. Ct. R. 3:21-4(g). ● Pennsylvania: “The judge shall state on the record the reasons for the sentence imposed.” Pa. R. Crim. P. 704(C)(2). ● Wisconsin: “The justification for the length of the sentence should always be set forth in the record, as well as the reasons for not imposing a sentence of lesser
3This is only a list of the states that require a sentencing explanation by criminal procedure rule, not a list of the total number of states that require a sentencing explanation. For example, the criminal procedure rules in Montana and Oregon are codified by statute. Mont. Code Ann. § 46– 18–102(3)(b) (“When the sentence is pronounced, the judge shall clearly state for the record the reasons for imposing the sentence.”); Or. Rev. Stat. Ann. § 137.120(1) (“The court shall state on the record the reasons for the sentence imposed.”). Federal courts are required by statute to state the reasons for the sentence. 18 U.S.C. § 3553(c) (“The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence.”). And Hawaii’s requirement was established by a supreme court opinion. State v. Hussein, 229 P.3d 313, 327-28 (Haw. 2010). 4
June 28, 2019 Criminal Procedure Rules Committee 167 duration.” Wis. J.I.—Crim. SM–34 at 8–9. See also Wisconsin Judicial Benchbook, CR 36–18 (2002) (“Judge must detail reasons for selecting particular sentence imposed”).
C. The American Bar Association recommends the change
The American Bar Association has explicitly urged state courts to adopt a rule of
procedure requiring a sentencing explanation:
STANDARD 18-5.19 IMPOSITION OF SENTENCE D. Sentencing Proceedings . . . (b) The rules should provide that a sentencing court, when imposing sentence, should state or summarize the court’s findings of fact, should state with care the precise terms of the sentence imposed, and should state the reasons for selection of the type of sanction and the level of severity of the sanction in the sentence.
(i) The statement of reasons may be relatively concise when the level of severity and type of sanction are consistent with the presumptive sentence, but the sentencing court should always provide an explanation of the court’s reasons sufficient to inform the parties, appellate courts, and the public of the basis for the sentence.
ABA Standards for Criminal Justice, Sentencing § 18–5.19(b)(i) (3d ed. 1994). The ABA has
reiterated this recommendation. In response to a speech by Justice Kennedy, the American Bar
Association established a commission that advanced several criminal justice reforms, including a
recommendation to “require courts to state their reasons for particular sentences and allow
appellate review.” Michael Vitiello & Clark Kelso, A Proposal for a Wholesale Reform of
California’s Sentencing Practice and Policy, 38 Loy. L.A. L. Rev. 903, 911 (2004) (quoting Am.
Bar Ass'n, Justice Kennedy Commission, Report to the House of Delegates (2004), available at http:// www.abanet.org/media/kencomm/rep121a.pdf).
5
June 28, 2019 Criminal Procedure Rules Committee 168 D. The benefits of sentencing explanations
1. Reduces racial disparity
Objective evidence demonstrates that Florida has racial disparity in sentencing.4
Requiring a sentencing explanation is an important step toward alleviating this problem.
“[S]entences imposed without sufficient explanation can mask implicit biases, which are activated involuntarily and which generally occur without our awareness or intentional control.”
Alfonso-Roche, 199 So. 3d at 952 (Gross, J., concurring) (quotation marks and citation omitted).5
“Recent scholarship has emphasized the role of sentence explanation in limiting the appearance of bias and lessening the risk of cognitive bias, including racial bias.” State v. Thacker, 862
4 Delancy v. State, 256 So. 3d 940, 947 (Fla. 4th DCA 2018) (stating that the “DOC statistics showing a disparity between average sentences for white defendants and minority defendants are disturbing” and citing the Sarasota Herald-Tribune reports); Michael Braga, Josh Salman, and Daphne Duret, Influence & Injustice: Back to the Bench, The Palm Beach Post, Dec. 16, 2018, available at http://projects.heraldtribune.com/influence/solutions; Daphne Duret, Josh Salman, and Michael Braga, Sharp contrast stands out in public defenders Carey Haughwout and Diamond Litty, The Palm Beach Post, Nov. 29, 2018, available at https://www.palmbeachpost.com/news/20181129/sharp-contrast-stands-out-in-public-defenders- carey-haughwout-and-diamond-litty; Josh Salman, Emily Le Coz, and Elizabeth Johnson, Bias on the Bench, Sarasota Herald-Tribune, Dec. 8, 2016, available at http://projects.heraldtribune.com/bias/; Josh Salman, Emily Le Coz, and Elizabeth Johnson, Florida’s Broken Sentencing System: Designed for Fairness, It Fails to Account for Prejudice, Sarasota Herald-Tribune, Dec. 8, 2016, available at http://projects.heraldtribune.com/bias/sentencing/; Josh Salman, Emily Le Coz, and Elizabeth Johnson, Tough on Crime: Black Defendants Get Longer Sentences in Treasure Coast System, Sarasota Herald-Tribune, Dec. 8, 2016, available at http://projects.heraldtribune.com/bias/bauer/; Cyrus O’Brien et al., Florida Criminal Justice Reform: Understanding the Challenges and Opportunities, Florida State University Project on Accountable Justice (2017), available at http://www.cyrusobrien.com/activism/ (finding, for example, that the 19th Circuit has the highest incarceration rate for blacks and the most severe racial disparity).
5 See also Adam Lamparello, Social Psychology, Legitimacy, and the Ethical Foundations of Judgment: Importing the Procedural Justice Model to Federal Sentencing Jurisprudence, 38 Colum. Hum. Rts. L. Rev. 115, 137 (2006) (noting that, when there is a “lack of standards or accountability,” personal factors “such as an offender’s race . . . impacted sentencing outcomes and accounted for certain disparities” (citation omitted)). 6
June 28, 2019 Criminal Procedure Rules Committee 169 N.W.2d 402, 407 n.3 (Iowa 2015) (citations omitted). Furthermore, requiring a statement of reasons “pushes sentencing judges to engage in the disciplining process of articulated justification.” Model Penal Code: Sentencing § § 7.XX (Proposed Final Draft 2017). “Many flaws in reasoning, or insights otherwise hidden, come to light only through the effort of explanation.” Id.; see also Sen v. Wyoming, 301 P.3d 106, 127 (Wyo. 2013) (“requiring the trial court to articulate its reasons for selecting a sentence will promote more thoughtful consideration of relevant factors and will help rationalize the sentencing process.” (citations omitted)).
2. Reduces unwarranted sentencing disparities
In addition to racial disparity, unwarranted sentencing disparity – i.e., similarly situated individuals receiving different sentences – remains a problem in contemporary Florida sentencing. The Fourth District has lamented that it “see[s] sentences that beg for justification that the record does not provide.” Alfonso-Roche, 199 So. 3d at 946. The Florida sentencing guidelines were adopted in response to “a national concern about unreasonable sentencing variation,” and the unfair variations were largely attributed to unfettered judicial discretion. Id. at 947 (Gross, J., concurring). But Florida abandoned the sentencing guidelines in favor of the
Criminal Punishment Code (CPC). Id. Unsurprisingly, with this change, more unwarranted sentencing disparity exists today under the CPC “than under any of the previous guidelines.”
Committee on Criminal Justice, Review the Criminal Punishment Code and Sentencing Judges’
Assessment, The Florida Senate (Nov. 2005), at 6, available at http://archive.flsenate.gov/data/Publications/2006/Senate/reports/interim_reports/pdf/2006-
112cj.pdf.
Not only are unwarranted sentencing disparities simply fundamentally unfair, they can also rise to the level of a constitutional violation. State Farm Mut. Automobile Ins. Co. v.
7
June 28, 2019 Criminal Procedure Rules Committee 170 Campbell, 538 U.S. 408, 416 (2003) (Fourteenth Amendment prohibits “arbitrary punishments”);
Cromartie v. State, 70 So. 3d 559, 564 (Fla. 2011) (arbitrary incarceration violates due process);
State v. Rousseau, 509 So. 2d 281, 284 (Fla. 1987) (“case-to-case sentencing based on identical acts” is “arbitrary”); Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980) (“Judges dealing with cases essentially alike should reach the same result.”).
And practically speaking, the unfairness of sentencing disparity is not lost on inmates as
James V. Bennett, a former director of the Federal Bureau of Prisons, eloquently explained:
The prisoner who must serve his excessively long sentence with other prisoners who receive relatively mild sentences under the same circumstances cannot be expected to accept his situation with equanimity. The more fortunate prisoners do not attribute their luck to a sense of fairness on the part of the law but to its whimsies. The existence of such disparities is among the major causes of prison riots, and it is one of the reasons why prisons so often fail to bring about an improvement in the social attitudes of their charges.
J. Bennett, Of Prisons and Justice, S. Doc. No. 70, 88th Cong., 2d Sess. 319 (1964). Similarly, when the Legislature enacted the CPC, the bill analysis warned: “The Department of Corrections is concerned that disparate sentences could make inmates more difficult to control.” H.R.
Comm. on Crim. Justice, Bill Analysis & Econ. Impact Statement, CS/HB 241 (Mar. 18, 1997), at page 15.
Requiring a sentencing explanation can help reduce unwarranted sentencing disparity.
State v. Hussein, 229 P.3d 313, 323 (Haw. 2010) (“Explanations given by sentencing courts are vital to achievement of appropriate individualization of sentences with a sentencing system that is reasonably determinate and that seeks to avoid unwarranted disparities in sentences imposed.”
(quoting ABA Standards for Criminal Justice: Sentencing at 212-13 (3d ed. 1994));
Commonwealth v. Riggins, 377 A.2d 140, 148 & n.22 (Pa. 1977) (“Reasoned sentencing
8
June 28, 2019 Criminal Procedure Rules Committee 171 decisions may . . . reduce disparity in sentences decreasing the number of unusually lenient as
well as unusually harsh sentences.”).6
3. Ensures procedural due process
According to the United States Supreme Court, the “minimum requirements of due
process” require “a written statement by the factfinders as to the evidence relied on and reasons
for” the decision to deprive someone’s physical liberty. Gagnon v. Scarpelli, 411 U.S. 778, 786
(1973); see also Michael C. Berkowitz, The Constitutional Requirement for a Written Statement
of Reasons and Facts in Support of the Sentencing Decision: A Due Process Proposal, 60 Iowa
L. Rev. 205 (1974)). The proposed rule is therefore necessary to preserve criminal defendants’
procedural due process rights.
4. Preserves the right to appellate review
Although a sentence within the permissible statutory range is generally not subject to
appellate review,7 there are notable exceptions. For example, it is fundamental reversible error if
the trial court relied on an impermissible factor in sentencing. Challis v. State, 157 So. 3d 393,
396 (Fla. 2d DCA 2015); Kenner v. State, 208 So. 3d 271, 277 (Fla. 5th DCA 2016). And this is
6 See also Williams v. State, 809 P.2d 931, 935 (Alaska Ct. App. 1991) (“At a minimum, however, the principle of reasonable sentencing uniformity requires a sentencing judge who decides that an offender deserves a sentence which is significantly different from sentences previously given to similarly situated offenders to expressly find some legitimate basis for the difference . . . That basis should be spelled out on the sentencing record, so that the defendant and a reviewing court can understand the reasons for the disparity.”); In re Michael B., 566 A.2d 446, 447 & n.1 (Conn. Supp. Ct. 1989) (“It is fitting that the court give its sentences and the reasons for them in writing . . . We do indeed do violence to the precept that ours is a government of laws and not of men if we permit individual judges to sentence in disparate ways, without recording their reasons and without adhering to standards.” (citation omitted)); Michael M. O’Hear, Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experiences, 93 Marq. L. Rev. 751, 757 (2009) (“Explanation review is capable of advancing justice in both the purposefulness and uniformity senses.”).
7 But see Griffis v. State, 759 So. 2d 668, 672 (Fla. 2000) (noting that Florida defendants have a constitutional right to appeal); Trowell v. State, 739 So. 2d 77, 80 (Fla. 1999) (same). 9
June 28, 2019 Criminal Procedure Rules Committee 172 true even if the impermissible factor “was but one of several factors the court considered in
imposing its sentence.” Green v. State, 84 So. 3d 1169, 1171 (Fla. 3d DCA 2012); see also
Kenner, 208 So. 3d at 278 (same). Reversal is also required whenever the trial court
misunderstands the scope of its discretion,8 or utilizes an inflexible sentencing policy.9
“[W]hen determining whether a court relied on impermissible sentencing factors, it is
primarily the court’s express rationale . . . which controls.” Senser v. State, 243 So. 3d 1003,
1011 (Fla. 4th DCA 2018); cf. Fales v. State, No. 1D17-4857, 2019 WL 272665, at *1 (Fla. 1st
DCA Jan. 22, 2019) (recognizing that the appellate court was capable of reversing a trial court
decision due to the application of a wrong legal standard only because “the trial court explained why” it made that decision). It naturally follows that unless the trial court explains its sentencing
decision, critical appellate review of the sentence is foreclosed. Judicial silence “operates to
conceal sentencing misconduct,” Mendoza-Magadan v. State, 217 So. 3d 112, 114 (Fla. 4th DCA
2017) (Gross, J., concurring), and “presents an insurmountable obstacle to establishing a record
of a constitutional violation in sentencing.” Alfonso-Roche v. State, 199 So. 3d 941, 952 (Fla.
4th DCA 2016) (Gross, J., concurring).
As other states have recognized, “the sentencing court’s statement of reasons for the
sentence imposed is, of course, essential to meaningful appellate review of sentences. A
statement of reasons for sentence may be especially helpful when a sentence is challenged on
appeal as possibly based on an improper factor.” Hussein, 229 P.3d at 323 (quoting ABA
Standards for Criminal Justice: Sentencing at 212–13, Standard 18–5.19, Imposition of Sentence
(3d ed. 1994)); see also Sen, 301 P.3d at 127 (“a statement of reasons will be invaluable in aiding
8 See, e.g., Stewart v. State, 201 So. 3d 1258, 1260 (Fla. 1st DCA 2016).
9 See, e.g., Cromartie v. State, 70 So. 3d 559, 563-64 (Fla. 2011); DeSantis v. State, 240 So. 3d 751, 753-54 (Fla. 4th DCA 2018); Barnhill v. State, 140 So. 3d 1055, 1061 (Fla. 2d DCA 2014). 10
June 28, 2019 Criminal Procedure Rules Committee 173 appellate courts to ascertain whether the sentence imposed was based upon accurate, sufficient
and proper information.” (quoting Riggins, 377 A.2d at 148); State v. Gallion, 678 N.W.2d 197,
200 (Wis. 2004) (“In all Anglo–American jurisprudence a principal obligation of the judge is to
explain the reasons for his actions. His decisions will not be understood by the people and cannot
be reviewed by the appellate courts unless the reasons for decisions can be examined.” (quoting
McCleary v. State, 182 N.W.2d 512 (1971)).
There are real life examples of sentencing errors that demonstrate the danger of
condoning judicial silence at sentencing. In at least 13 reported decisions, judges imposed life
sentences on the mistaken assumption they were required to do so.10 The district courts reversed
and remanded for resentencing. On remand, at least 9 of the 13 defendants received significantly
lower sentences, and most have been released from prison. These were cases in which the judge
happened to say something that revealed his or her sentencing mistake. But there must be
defendants in prison based on the same error who remain in custody because the judge said
nothing. As judge and the “father of sentencing reform”11 Marvin Frankel stated, without a
sentencing explanation, “[t]here is no way of knowing . . . how many sentences, for how many
10 Davis v. State, 227 So. 3d 137 (Fla. 4th DCA 2017) (trial court under misconception that it could not revisit previously imposed life sentence; on remand court sentenced Davis to 25 years; see DOC offender search page, http://www.dc.state.fl.us/OffenderSearch/Search.aspx, and enter DOC# 083406); Broadway v. State, 179 So. 3d 560 (Fla. 4th DCA 2015) (resentenced to 40 years; DOC# L68243); Prince v. State, 98 So. 3d 768 (Fla. 4th DCA 2012) (22 years; DOC# 037488); Johnson v. State, 9 So. 3d 640, 642 (Fla. 4th DCA 2009) (30 years; DOC# 671250); Stephens v. State, 974 So. 2d 455 (Fla. 2d DCA 2008) (23 years; DOC# 577055); Galarraga v. State, 770 So. 2d 1249, 1250 (Fla. 4th DCA 2000) (life; DOC# 894839); Bristol v. State, 710 So. 2d 761, 761 (Fla. 2d DCA 1998) (25 years; DOC# 143882); Bedford v. State, 706 So. 2d 947 (Fla. 1st DCA 1998) (20 years; DOC# 673957); Adams v. State, 617 So. 2d 474 (Fla. 4th DCA 1993) (life; DOC# 792455); Crumitie v. State, 605 So. 2d 543 (Fla. 1st DCA 1992) (unknown); Williams v. State, 596 So.2d 791 (Fla. 4th DCA 1992) (20 years; DOC# 600410 (Alfreda Brinson AKA Freddie B. Williams)); Burdick v. State, 594 So. 2d 267 (Fla. 1992) (15 years; DOC# 751912); Henry v. State, 581 So. 2d 928, 930 (Fla. 3d DCA 1991) (unknown).
11 Daniel M. Isaacs, Baseline Framing in Sentencing, 121 Yale L.J. 426, 451 (2011). 11
June 28, 2019 Criminal Procedure Rules Committee 174 thousands of years, have rested upon hidden premises that could not have survived scrutiny.”
Marvin Frankel, CRIMINAL SENTENCES: LAW WITHOUT ORDER 42 (1973).
5. Assists future legislators
Adopting this rule may ultimately benefit the Florida legislature, as it will help legislators
craft future legislation. Riggins, 377 A.2d at 148 (“Reasoned sentencing decisions may
encourage the development of sentencing criteria.”); cf. Rosales-Mireles v. United States, 138 S.
Ct. 1897, 1908 (2018) (noting that when sentencing errors “go uncorrected,” the federal
Sentencing Commission’s “ability to make appropriate amendments is undermined”); Rita v.
United States, 551 U.S. 338, 357 (2007) (noting that “by articulating reasons, even if brief, the sentencing judge . . . helps that [sentencing] process evolve”).
6. Improves public perception of courts
The requirement of a sentencing explanation improves the perception of the courts, both to the individual being sentenced and the public at large. “[T]he perceived equity of the judicial process is undercut when the court in effect sentences in silence.” State v. Fountas, 514 N.W.2d
879 (Wis. Ct. App. 1994) (quoting ABA Standards for Criminal Justice §18-6.6 at 18-485 to 18-
486 (2d ed. 1980)). As an appellate judge in Illinois explained:
It is not enough for judges to make fair, unbiased, and particularized sentencing decisions; criminal defendants (and the public) must perceive judges as making fair, unbiased, and particularized sentencing decisions. That cannot be achieved as long as judges don’t need to justify or legitimatize their actions. This is why the American Bar Association has long recommended that sentencing judges “always provide an explanation of the court’s reasons sufficient to inform the parties, appellate courts, and the public of the basis for the sentence.” ABA Standards for Criminal Justice § 18–5.19(D)(b)(i) (3d ed.1994). It is not a question of whether a defendant agrees with the ultimate sentence. (Most defendants won’t.) Research shows that when observers are deciding whether a judge’s decisions are legitimate, the primary factor is whether they believe the judge made that decision through a fair procedure. Tracey L. Meares & Tom R. Tyler, Justice Sotomayor and the Jurisprudence of Procedural Justice, 123 Yale L.J. Forum 525, 527 (2014) (“procedural justice matters more
12
June 28, 2019 Criminal Procedure Rules Committee 175 than whether or not people agree with a decision or regard it as substantively fair”). And it goes beyond one individual defendant; the judiciary gains legitimacy in society’s eyes when all people can see decisions being made fairly. Tom R. Tyler & Justin Sevier, How Do the Courts Create Popular Legitimacy? The Role of Establishing the Truth, Punishing Justly, and/or Acting Through Just Procedures, 77 Alb. L. Rev. 1095, 1102 (2014). That legitimacy has far-reaching benefits; “people are both more likely to obey law and to accept decisions when they view the courts as legitimate.” Id. at 1104. If fairness to the parties and society’s scrutiny does not influence trial courts to be more forthcoming, there is an additional reason. We appellate court justices are often asked to review trial court sentencing decisions. But, long- standing case law constrains us from overturning a sentence imposed within the statutory range unless the sentencing court abuses its discretion. People v. Hauschild, 226 Ill.2d 63, 90 (2007). At the very least, though, knowing the sentencing court’s reasoning benefits defendant, the State, the public, and the appellate court in assessing whether the sentence was not arbitrary or unjust, and whether error or a sentencing court's personal feelings or biases affected the sentencing process. People v. Bryant, 55 N.E.3d 97, 103-04 (Ill. App. Ct. 2016) (Hyman, J., specially concurring); see also S.I. Strong, Writing Reasoned Decisions and Opinions: A Guide for Novice,
Experienced, and Foreign Judges, 2015 J. Disp. Resol. 93, 104 (2015) (noting that “reasoned judgments provide various benefits to society at large,” for example, “requiring a trial court to provide a reasoned basis” for its decision “may enhance the court’s legitimacy as perceived by judges themselves and participants in the . . . justice system” (ellipsis in original)).
Sentencing explanations can also have a therapeutic effect, for both the defendant and the victims. People v. Watkins, 613 P.2d 633, 637 (Co. 1980) (en banc) (“a sentencing explanation in many cases can have therapeutic value for the defendant.”); see also Thacker, 862 N.W.2d at
407 n.2 (noting “that some sort of explanation for a decision remains necessary if we are to conceive genuinely of the individual as an autonomous moral agent entitled to self-respect”
(citation and international quotation marks omitted omitted)). “It is extremely demeaning to be sentenced to a lengthy jail term when another person, seemingly in an identical position, is freed, and no explanation is given,” but a sentencing explanation requirement “create[e]s at least an
13
June 28, 2019 Criminal Procedure Rules Committee 176 appearance of fairness.” Martha I. Morgan, The Constitutional Right to Know Why, 17 Harv.
C.R.-C.L. L. Rev. 297, 338 (1982). Additionally, a sentencing explanation “may have the effect of purging, to some extent, feelings of any felt need for retribution in a victim, a victim’s family, or the community as a whole.” Hussein, 229 P.3d at 322 (cleaned up).
7. Judges are required to explain far less important decisions
“[T]he appropriate sentence to be meted out to the convicted criminal defendant” is “the most important matter upon which [the trial court] is called to judge[.]” Jean-Baptiste v. State,
155 So. 3d 1237, 1242 (Fla. 4th DCA 2015). Judges are required to explain decisions that are less important than sentencing. For instance, judges must explain why they:
● ordered alimony, Valentine v. Van Sickle, 42 So. 3d 267 (Fla. 2d DCA 2010); ● ordered child support, Ondrejack v. Ondrejack, 839 So. 2d 867 (Fla. 4th DCA 2003); ● denied record expungement, Kanji v. State, 4 So. 3d 65 (Fla. 5th DCA 2009); ● deviated from the Standard Jury Instructions, Fla. R. Crim. P. 3.985; ● denied out of state jail credit, Heuton v. State, 790 So. 2d 1204 (Fla. 2d DCA 2001); ● denied a motion to return property, Chapman v. State, 192 So. 3d 1277 (Fla. 2d DCA 2016); ● denied removal from the sex offender list, Wromas v. State, 208 So. 3d 218 (Fla. 3d DCA 2016); ● deviated from DJJ’s restrictiveness level, E.A.R. v. State, 4 So. 3d 614, 638 (Fla. 2009); ● denied a rule 3.850 motion, Hayes v. State, 958 So. 2d 571, 572 (Fla. 4th DCA 2007); ● denied a rule 3.800(a) motion, Thompson v. State, 17 So. 3d 307 (Fla. 4th DCA 2009) (Warner, J., concurring); ● shackled the defendant, Torres v. State, 9 So. 3d 746, 748 (Fla. 4th DCA 2009); ● denied restitution, State v. Castro, 965 So. 2d 216, 218 (Fla. 3d DCA 2007); ● denied a request to be declared indigent for appeal, Shaw-Messer v. Messer, 743 So. 2d 1199 (Fla. 5th DCA 1999); ● granted a downward departure sentence, State v. Johnson, 193 So. 3d 32, 34 (Fla. 3d DCA 2016);
14
June 28, 2019 Criminal Procedure Rules Committee 177 ● revoked probation, Rogers v. State, 635 So. 2d 1026, 1027 (Fla. 1st DCA 1994). ● committed a defendant found NGI, Kellond v. State, 206 So. 3d 138 (Fla. 1st DCA 2016); ● entered a temporary civil injunction, Aligned Bayshore Marina v. American Water-Sports Coconut Grove, 207 So. 3d 331 (Fla. 3d DCA 2016). Furthermore, Florida already requires explanations in certain sentencing contexts; this proposal merely expands the scope of the rule. See Fla. R. Crim. P. 3.781(c)(1) (“The court shall make specific findings on the record that all relevant factors have been reviewed and considered by the court prior to imposing a sentence of life imprisonment or a term of years equal to life imprisonment.”); Camacho v. State, 164 So. 3d 45 (Fla. 2d DCA 2015) (failure to explain reasons for denying downward departure motion necessitated remand).
III. Responses to Potential Criticisms
We recognize that this proposal will not be met with universal approval. We offer the following responses to some potential criticisms of this amendment.
A. The proposed rule is not too burdensome
The “core of judicial opposition” to this proposed rule is that judges are not “anxious to add a new burden to their already full-time schedules.” Kevin R. Reitz, Sentencing Guideline
Systems and Sentence Appeals: A Comparison of Federal and State Experiences, 91 Nw. U. L.
Rev. 1441, 1446 (1997). Opponents of the rule fear that a sentencing explanation requirement will increase work at both the trial and appellate levels, as trial courts will have to express reasoning on the record and defendants may have more sentencing issues on appeal.
15
June 28, 2019 Criminal Procedure Rules Committee 178 First, this criticism overestimates the burden this rule will impose. The vast majority of criminal charges end with pleas12 and, in the negotiated plea context, the explanation required will be nothing more than the trial court’s determination that the plea agreement is acceptable – something the court already must do. Fla. R. Crim. P. 3.171(d). This rule will only do real work in the smaller subset of cases in which the defendant is sentenced after an open plea or trial.
Within this smaller subset of cases, trial courts “should easily be able to explain their sentencing decisions as long as they are properly sentencing defendant.” Paul E. Shelton,
“Reasons? We Don’t Need No Stinkin’ Reasons:” Why United States District Courts Should Be
Required to Explain 18 U.S.C. § 3582(C)(2) Resentencing Decisions, 87 Tul. L. Rev. 1311, 1322 n.71 (2013) (citing Ivan S. DeVoren, Judicial Discretion in Sentencing —Commonwealth v.
Devers, 519 PA. 88, 546 A.2d 12 (1988), 62 Temp. L. Rev. 729, 734 (1989)). Trial courts presumably have sound reasons for imposing a particular sentence anyway, as a “sentencing decision must be supported by logic and reason and must not be based upon the whim or caprice of the judge.” McKinney v. State, 27 So. 3d 160, 161 (Fla. 1st DCA 2010). It cannot be much work to articulate that reasoning out loud on the record rather than keeping it in the judge’s head
– unless, of course, the judge is not engaging in principled reasoning when making a sentencing decision. And if that is true, then that is an argument for more robust procedural safeguards at sentencing, rather than less.
Also, many judges in Florida already voluntarily provide an explanation for their sentence, which undercuts an argument that the requirement is overly burdensome.
Additionally, the proponents of this rule do not anticipate that it will require verbose explanations from trial courts. “The statement of reasons may be relatively concise when the
12 Lafler v. Cooper, 566 U.S. 156, 170 (2012) (recognizing “the reality that criminal justice today is for the most part a system of pleas, not a system of trials”). 16
June 28, 2019 Criminal Procedure Rules Committee 179 level of severity and type of sanction are consistent with the presumptive sentence.” Hussein,
229 P.3d at 322 (citation omitted); see also Rita, 551 U.S. at 356 (“when a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation.”). As one scholar stated:
[T]he transaction costs of mandatory explanation do not seem excessive. The explanation could be delivered orally in open court at the same time that the sentence is imposed; there would be no routine need for additional proceedings. Sentencing hearings already regularly include statements by defendants, defense counsel, prosecutors, and judges. To demand more consistently thorough remarks by judges is not likely to result in a large increase in the amount of time sentencing hearings take.
Michael M. O’Hear, Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experiences, 93 Marq. L. Rev. 751, 791 (2009). As an analogy, Florida already requires the trial court to give a defendant an opportunity for allocution, even when the sentence is mandatory. Ventura v. State, 741 So. 2d 1187, 1189 (Fla. 3d DCA 1999). This has the same cost as requiring sentencing explanations – it increases the length of the sentencing hearing – but
Florida appellate courts have determined that the “perceived equity of the [sentencing] process” is important enough to justify that cost. Id.
Furthermore, rather than increasing costs, the adoption of a sentencing explanation might reduce workloads in the long run. It is less likely that a defendant will appeal his sentence if he understands the reasons behind his sentence and the sentencing hearing appeared fair:
In addition to the desirability of reviewing sentences to make sure that they are just, commensurate with the degree of guilt and the need for rehabilitation of the defendant, the American Bar Association Standards point out that sentence review will facilitate the rehabilitation of the offender by affording him an opportunity to assert a reasonable grievance he may have regarding his sentence. A byproduct of a reasonable review of sentencing by an appellate court may well be the diminution of the appellate court's workload by reducing appeals on the merits.
Gallion, 678 N.W.2d at 209 n.14 (citation omitted). Similarly, Frankel argues that once a set of rules has been created to guide a sentencing court’s discretion, it “may have the effect ultimately
17
June 28, 2019 Criminal Procedure Rules Committee 180 of making appellate review less urgently necessary.” Marvin Frankel, CRIMINAL SENTENCES:
LAW WITHOUT ORDER 85 (1973); see also Watkins, 613 P.2d at 637 (suggesting that defendants
may not seek appellate review if they understand the justifications for their sentences).
Furthermore, “there are regularly recurring issues and fact patterns in sentencing, such that an
appellate court’s investment of effort in clear, well-reasoned sentencing opinions could save
transaction costs in resolving future cases.” Michael M. O’Hear, Appellate Review of Sentences:
Reconsidering Deference, 51 Wm. & Mary L. Rev. 2123, 2156 (2010) (internal citation omitted).
Second, the benefits of requiring sentencing explanations outweigh any cost. While an
explanation requirement imposes only “modest” costs, the benefits can be enormous. O’Hear,
93 Marq. L. Rev. at 791. As explained above in Point II.D, a sentencing explanation can, among
other things, reduce racial and unwarranted sentencing disparities, assist the legislature in
crafting sentencing criteria, and improve public perception of the courts. And the harm of racial
disparity (and disparity in general) in sentencing, and the benefit of reducing it, is incalculable.
The United States Supreme Court has stated that racial discrimination in sentencing “injures not
just the defendant, but ‘the law as an institution, . . . the community at large, and . . . the
democratic ideal reflected in the processes of our courts.’” Buck v. Davis, 137 S. Ct. 759, 778
(2017) (quoting Rose v. Mitchell, 443 U.S. 545, 556 (1979), and adding ellipses); see also
Shelton, 87 Tul. L. Rev. at 1322 (noting generally that sentencing explanations benefit not just
individual defendants, but also “all of the players in the legal game--the government, defendants,
and the judiciary”).
When analyzing whether an explanation requirement is worth the cost, it “is important to
remember . . . what is at stake in the sentencing decision.” Michael M. O’Hear, Explaining
Sentences, 36 Fla. St. U. L. Rev. 459, 476 (2009); see also Daniel M. Isaacs, Baseline Framing
18
June 28, 2019 Criminal Procedure Rules Committee 181 in Sentencing, 121 Yale L.J. 426, 457 (2011) (noting that sentencing judges are making “life-
altering decisions”). The legal community must:
bear in mind the importance of the liberty interests at stake in sentencing decisions. Our constitutional due process jurisprudence properly recognizes that the need for reliable decision making is at its zenith when the individual interests at stake are most important. The logic of this jurisprudence should make us particularly hesitant to reject explanation review on the basis of mere transaction costs.
O’Hear, 93 Marq. L. Rev. at 791. Overall, as one scholar concluded, “the costs to a defendant
whose liberty is deprived are unquestionably higher than the burden of requiring a district court to justify its ruling.” Shelton, 87 Tul. L. Rev. at 1322.
Finally, Florida appellate courts have already done this cost-benefit analysis in other contexts and have concluded that the benefits of requiring an explanation outweigh the costs. As explained above, trial courts are required to explain their decisions in a wide variety of contexts.
See supra Point II.D.7. The appellate courts that imposed these explanation requirements necessarily concluded that the additional benefits of the requirement outweighed the costs. And as noted above, sentencing is an important – if not the most important – decision that a trial court will have to make. If an explanation requirement is not too costly when, for example, the trial court is determining alimony or restitution, then surely it is not too costly when a trial court is making the arguably more important decision of how long the state may deprive a person of his physical liberty.
B. The individualistic nature of sentencing does not preclude structured decision making Some opponents of an explanation requirement argue that sentencing is such an individualized sentencing process that it cannot be subjected to structured decision making.
This argument essentially invites due process violations. As Chief Justice Roberts has
explained:
19
June 28, 2019 Criminal Procedure Rules Committee 182 It is true that district courts exercise substantial discretion in awarding restitution and imposing sentences in general. But they do not do so by mere instinct. Courts are instead guided by statutory standards: in the restitution context, a fair determination of the losses caused by the individual defendant under section 3664(e); in sentencing more generally, the detailed factors in section 3553(a). A contrary approach—one that asks district judges to impose restitution or other criminal punishment guided solely by their own intuitions regarding comparative fault—would undermine the requirement that every criminal defendant receive due process of law.
Paroline v. United States, 572 U.S. 434, 471 (2014) (Roberts, C.J., dissenting); see also Rosales-
Mireles v. United States, 138 S. Ct. 1897, 1904 (2018) (noting that “operat[ing] within [a] framework” ensures “certainty and fairness” in sentencing); Gallion, 678 N.W.2d at 209
(recognizing that “individualized sentencing” is “a cornerstone” of criminal justice but nonetheless reaffirming an explanation requirement).
Frankel has already grappled with and persuasively dismissed this precise objection:
It is said often that sentencing is a matter of ‘discretion,’ as distinguished from ‘law,’ and hence is unsuited for inclusion among the ‘questions of law’ that comprise the domain of appellate courts. . . . The talking about sentencing lying in ‘discretion,’ and thus outside ‘law,’ bundles together a complex of conceptions and misconceptions that goes far to summarize the evils of the system. It is true that as we now handle this enormous power, trial judges are invited to proceed by hunch, by unspoken prejudice, by untested assumptions, and not by ‘law.’ But that is, as I have argued, the crux of what is wrong, not an argument for keeping things as they are. Correctly understood, the ‘discretion’ of judicial officers in our system is not a blank check for arbitrary fiat. It is an authority, within the law, to weigh and appraise diverse factors (lawfully knowable factors) and make responsible judgment, undoubtedly with a measure of latitude and finality varying according to the nature and scope of the discretion conferred. But ‘discretionary’ does not mean ‘unappealable.’ Discretion may be abused, and is discretionary decisions may be reversed for abuse. The contention that sentencing is not regulated by rules of ‘law’ subject to appellate review is an argument for, not against, a system of appeals. The ‘common law’ is, after all, a body of rules evolved through the process of reasoned decision of concrete cases, mainly by appellate courts . . . One way to begin to temper the capricious unruliness of sentencing is to institute the right of appeal, so that appellate courts may proceed in their accustomed fashion to make law for this grave subject.
Marvin Frankel, CRIMINAL SENTENCES: LAW WITHOUT ORDER 82-84 (1973).
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June 28, 2019 Criminal Procedure Rules Committee 183 IV. The recommended rule is procedural
The Florida Supreme Court adopts amendments to the Florida Rules of Criminal
Procedure. Art. V, § 2, Fla. Const. The Florida Supreme Court generally enacts “procedural law,” while the Legislature enacts “substantive law.” DeLisle v. Crane Co., No. SC16-2182,
2018 WL 5075302, at *3 (Fla. Oct. 15, 2018). Substantive law is “that which defines, creates, or regulates rights—‘those existing for their own sake and constituting the normal legal order of society, i.e., the rights of life, liberty, property, and reputation.’” Id. (quoting In re Fla. Rules of
Criminal Procedure, 272 So. 2d 65, 65 (Fla. 1972) (Adkins, J., concurring)). Procedural law, in contrast, addresses “the course, form, manner, means, method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion.” Mortimer v.
State, 100 So. 3d 99, 103 (Fla. 4th DCA 2012).
The rule proposed here easily falls within the “procedural” category. See O’Hear,
Explaining Sentences, 36 Fla. St. U. L. Rev. at 459-60 (describing an explanation requirement as an “enhanced procedural protection[]”). It does not create or define any new rights. Rather, it merely alters the “manner, “means,” “process or steps” by which a trial court imposes a sentence.
Mortimer v. State, 100 So. 3d at 103. Presumably trial courts imposing sentence are already engaging in a process of reasoning when settling upon a particular sentence. The rule changed here merely alters the procedure by which judges arrive at that conclusion; instead of keeping the decision in the judge’s head, the judge must express it out loud. Additionally, a procedural rule is one that helps “effectuate and implement constitutional and statutory rights and, to the extent possible, ensure against their violation.” Golden v. State, 350 So. 2d 344, 346 (Fla. 1976). An explanation requirement does just that because, as explained above, it guards against arbitrary and discriminatory sentences that violate equal protection and due process. See supra Part II.D.
21
June 28, 2019 Criminal Procedure Rules Committee 184 An analogous situation is the requirement of a presentence report. The Florida Supreme
Court adopted a rule requiring that this report be prepared in certain instances and, in doing so,
determined that such a rule is procedural. See Rhynes v. State, 312 So. 2d 520, 520 (Fla. 4th
DCA 1975). Both the requirement of a presentence report and the requirement of a sentencing
explanation are procedural because neither requirement defines or creates new sentencing rights,
but rather alters the process for determining what the appropriate sentence is. Stated otherwise, a
rule requiring judges to explain their sentences is part of the “the machinery of the judicial
process,” while the “ultimate sentence imposed is the product” of that process. Johnson v. State,
308 So. 2d 127, 129 (Fla. 1st DCA 1975).
For these reasons, the Florida Supreme Court should have no qualms about its ability to
adopt this proposed rule.
CONCLUSION
For these reasons, we recommend that the Florida Rules of Criminal Procedure be amended to require trial courts to articulate reasons for a particular sentence.
22
June 28, 2019 Criminal Procedure Rules Committee 185 From: Jason Bloch
Please forgive my typo. Corrected:
“In all felony cases, other than those where the specific sentence is contemplated by a plea bargain between the prosecution and the defense, the court shall state on the record its reasons for imposing the sentence.”
Thanks...Jason Bloch
From: Jason Bloch
I propose:
“In all felony cases, other than those where the specific sentence is contemplated by a plea bargain between the prosecution and the State, the court shall state on the record its reasons for imposing the sentence.”
When the sentence is the result of a plea bargain, after the state and defense have wrought an agreement in light of all the factors (some of which may be unknown to the court), judicial explanation seems superfluous. (Of course, the court remains free to reject the plea bargain.) And excluding plea bargains will eliminate the burden in the vast majority of cases.
Thanks...Jason Bloch
June 28, 2019 Criminal Procedure Rules Committee 186 RULE 3.720. SENTENCING HEARING
As soon as practicable after the determination of guilt and after the examination of any presentence reports, the sentencing court shall order a sentencing hearing. At the hearing:
(a)–(d) [No change]
(e) The court shall state on the record its reasons for imposing the sentence in all felony cases, except for cases in which the specific sentence is a negotiated plea agreement between the state and the defendant.
Committee Notes
June 28, 2019 Criminal Procedure Rules Committee 187 THE FLORIDA BAR CRIMINAL PROCEDURE RULES COMMITTEE
SUBCOMMITTEE ACTION REPORT
TO: Sheila Loizos
FROM: Roseanne Eckert
Please be advised that Subcommittee VI conducted a meeting on June 3, 2019, to discuss docket number 19-09-VI.
Subcommittee attendance was as follows:
Member Name Present Not Present Roseanne Eckert, Chair X Sheila Loizos, Oversight X Patrice Behnstedt X Diana Bock X Sarah Hatch X Rich Mantei X Liana Matthews X Hon. Nushin Sayfie X Varinia Van Ness X Hon. T. Kent Wetherell X
Additional participants included: Heather Telfer, Bar Liaison
The Subcommittee took the following action:
1. Determined that the submission is within the scope of Subcommittee authority. YES
2. Made the following work assignments: To divide the circuits amongst the Subcommittee members and determine if the circuits have a similar tracking scheme as Miami/Dade. Judge Sayfie noted that Miami/Dade requires each judge to give a status update on 3.850 motions on a monthly basis.
Ms. Loizos understand the frustrations of the referring party. She shared concerns that an arbitrary rule may not work. She noted that current sitting judges in her area are getting pressure from the DCA to keep cases moving – particularly in light of Marsy’s Law.
Ms. Eckert raised a concern that lengthy wait times are problematic for incarcerated defendants as they are reluctant, or unable, to call and check on the status of a motion.
1 June 28, 2019 Criminal Procedure Rules Committee 188
The remedy for not having a ruling is a writ of mandamus. Though the DCAs lack the time or resources to police the timing of all motions, in postconviction cases Judge Wetherell noted that if a writ on mandamus is filed, less than 90 days after the motion is filed, then his court does not act. However, if a writ is filed more than 90 days after the motion is filed, the court reaches out to the Attorney General’s office who reaches out to the State Attorney.
Mr. Mantei noted that a rule may not have fixed the referring individual’s concerns.
Any rule amendment would have to conform with Florida Rules of Judicial Administration 2.215 (Trial Court Administration) and 2.250 (Time Standards for Trial and Appellate Courts and Reporting Requirements). Perhaps this issue should be sent to RJA for consideration?
Another consideration is that the rules of court procedure are not enforcement tools. That’s up to the court.
3. Made the following decisions: To conduct research on internal procedures in all of the circuits, then reconvene and determine if this a statewide problem. Possibly send to RJA for consideration of a rule amendment.
4. Prepared the attached written report. N/A
5. Attach the proposed amendments in legislative format. N/A
The Subcommittee Chair is prepared to report to the full Committee at the meeting on June 28, 2019.
Roseanne Eckert Subcommittee Chair
cc: Committee Chair Committee Secretary The Florida Bar Liaison
2 June 28, 2019 Criminal Procedure Rules Committee 189 From: Dr. André LaVon Grant
Good Afternoon Heather:
Thanks for returning my phone call. It is disappointing that the process to amend the Criminal Procedure Rule can not occur until the year of 2021. Nevertheless, please read my situation below and the reasons why the amendment is necessary.
I read the Florida Supreme Court ruling in Daubert, In re Amendment to the Florida Evidence Code, No. SC19-107, May 23, 2019. Incorrectly, I spoke with the Vice Chair of the Civil Procedure Rules Committee. She stated that I should bring my concerns to you and the Criminal Procedure Rules Committee, which is that a trial judge has had my petition for post- conviction relief under advisement for more than five (5) months. This delay has severely prejudiced me even further. After sharing my situation with one of the committee members, it was suggested that I file a motion with the 2nd District Court with the hope that the District Court would order the Judge to rule in thirty (30) days. However, I believe that the judge would take offense to that action. Therefore, I think my best course of action is to get the rule changed statewide by going through the Florida Bar and the amendment process.
I have attached a copy of the Indiana Rules of Trial Procedure as a reference below. The State of Indiana has a section in their criminal rules of procedure that specifically addresses how long a judge can take to render a decision in a case: Rule 53.1 and Rule 53.2. Specifically, Rule 53.2, states "including for this purpose a petition for post conviction relief". This rule precisely address my concerns.
In January, 2018 I filed a pro se petition for post conviction relief, for which I alleged six (6) grounds that my conviction should have been overturned. Later that June, 2018, the judge held a hearing and held that three (3) of the grounds were legally sufficient. However, he gave my public defender an additional thirty (30) days to amend the other three (3) grounds. In December, 2018, the trial judge dismissed the petition for lack of filing an amended petition. Knowing that the petition was filed, I checked my records and noticed that the wrong case number was at the top. I alerted my public defender to the error (it had been siting in cue with the error for more than five (5) months and nobody caught it). My PD filed a timely motion to set aside the order dismissing my case and reconsider the petition on the ground that there was a judicial error that prevented him from getting the amended petition. The PD attached a sworn affidavit from the legal assistant, and attached a copy of the amended petition that was filed with the thirty (30) day as was previously ordered in his prior order. I have not heard anything from the court since January, 2019. Now, its the end of May, 2019.
June 28, 2019 Criminal Procedure Rules Committee 190
The State of Florida needs a rule similarly to Indiana!
Sincerely,
Dr. ALG
Copies sent to:
Ms. Sheila Ann Loizos, Chair Ms. Wendy Williams Berger Vice Chair Ms. Jane Ann McNeill, Vice Chair Ms. Danielle A. Sherriff, Vice Chair Mr. Sam Masters, Board Liaison https://www.in.gov/judiciary/rules/trial_proc/index.html
Rule 53.1. Failure to rule on motion (A) Time limitation for ruling. In the event a court fails for thirty (30) days to set a motion for hearing or fails to rule on a motion within thirty (30) days after it was heard or thirty (30) days after it was filed, if no hearing is required, upon application by an interested party, the submission of the cause may be withdrawn from the trial judge and transferred to the Supreme Court for the appointment of a special judge. (B) Exceptions. The time limitation for ruling on a motion established under Section (A) of this rule shall exclude any period after which the case is referred to alternative dispute resolution and until a report on the alternative dispute resolution is submitted to the court. The time limitation for ruling on a motion established under Section (A) of this rule shall not apply where: (1) The Court, within thirty (30) days after filing, orders that a motion be considered during the trial on the merits of the cause; or (2) The parties who have appeared or their counsel stipulate or agree on record that the time limitation for ruling on a motion shall not apply; or (3) The time limitation for ruling has been extended by the Supreme Court as provided by Section (D) of this rule; or (4) The ruling in question involves a repetitive motion, a motion to reconsider, a motion to correct error, a petition for post-conviction relief, or a ministerial post-judgment act. (C) Time of ruling. For the purposes of Section (A) of this rule, a court is deemed to have set a motion for hearing on the date the setting is noted in the Chronological Case Summary, and to have ruled on the date the ruling is noted in the Chronological Case Summary. (D) Extension of time for ruling. A judge may apply to the Supreme Court of Indiana to extend the time limitation set forth under Trial Rule 53.1, 53.2, or 53.3. The application must be filed prior to the filing of a praecipe with the Clerk under Trial Rules 53.1, 53.2, or 53.3, must be verified, must be served on the Clerk and all parties of record, and must set forth the following information: (1) The nature of the matter under submission;
June 28, 2019 Criminal Procedure Rules Committee 191 (2) The circumstances warranting the delay; and (3) The additional time requested. The withdrawal of submission under Trial Rule 53.1 or 53.2 or denial of a motion to correct error under Trial Rule 53.3 may not take effect during the pendency of the application for an extension of time to rule. However, if the time limitation expires while the application is pending before the Supreme Court, the jurisdiction of the trial judge shall be suspended at that point pending the action of the Supreme Court. (E) Procedure for withdrawing submission. Upon the filing by an interested party of a praecipe specifically designating the motion or decision delayed, the Clerk of the court shall enter the date and time of the filing on the praecipe, record the filing in the Chronological Case Summary under the cause, which entry shall also include the date and time of the filing of the praecipe, and promptly forward the praecipe and a copy of the Chronological Case Summary to the Chief Administrative Officer (CAO)of the Indiana Office of Judicial Administration (IOJA). The CAO shall determine whether or not a ruling has been delayed beyond the time limitation set forth under Trial Rule 53.1 or 53.2. (1) If the CAO determines that the ruling or decision has not been delayed, the CAO shall provide notice of the determination in writing to the Clerk of the court where the case is pending and the submission of the cause shall not be withdrawn. The Clerk of the court where the case in pending shall notify, in writing, the judge and all parties of record in the proceeding and record the determination in the Chronological Case Summary under the cause. (2) If the CAO determines that a ruling or decision has been delayed beyond the time limitation set forth under Trial Rule 53.1 or 53.2, the CAO shall give written notice of the determination to the judge, the Clerk of the trial court, and the Clerk of the Supreme Court of Indiana that the submission of the case has been withdrawn from the judge. The withdrawal is effective as of the time of the filing of the praecipe. The Clerk of the trial court shall record this determination in the Chronological Case Summary under the cause and provide notice to all parties in the case. The CAO shall submit the case to the Supreme Court of Indiana for appointment of a special judge or such other action deemed appropriate by the Supreme Court. (F) Report to Supreme Court. When a special judge is appointed under Trial Rule 53.1 or 53.2, the judge from whom submission was withdrawn shall, within ten (10) days from receipt of the order appointing a special judge, file a written report in the Supreme Court under the cause appointing the special judge. This report shall fully state the nature of the matters held in excess of the time limitations. Additionally, the report may relate any other facts or circumstances which the judge deems pertinent. (G) Permanent record. The Supreme Court shall maintain a permanent record of special judge appointments under Trial Rules 53.1 and 53.2.
Rule 53.2. Time for holding issue under advisement; delay of entering a judgment (A) Time limitation for holding matter under advisement. Whenever a cause (including for this purpose a petition for post conviction relief) has been tried to the court and taken under advisement by the judge, and the judge fails to determine any issue of law or fact within ninety (90) days, the submission of all the pending issues and the cause may be withdrawn from the trial judge and transferred to the Supreme Court for the appointment of a special judge. (B) Exceptions. The time limitation for holding an issue under advisement established under Section (A) of this rule shall not apply where: (1) The parties who have appeared or their counsel stipulate or agree on record that the time limitation for decision set forth in this rule shall not apply; or (2) The time limitation for decision has been extended by the Supreme Court pursuant to Trial Rule 53.1(D).
June 28, 2019 Criminal Procedure Rules Committee 192 (C) Time of decision. For the purpose of Section (A) of this rule, a court is deemed to have decided on the date the decision is noted in the Chronological Case Summary. (D) Extension of time for decision. The procedure for extending the time limitation for decision shall be as set forth in Trial Rule 53.1(D). (E) Procedure for withdrawing submission. The procedure for withdrawing submission and processing the appointment of a special judge shall be as set forth in Trial Rule 53.1(E). (F) Report to Supreme Court. Whenever a special judge is appointed pursuant to this rule, the judge from whom submission has been withdrawn shall file a report with the Supreme Court as provided for in Trial Rule 53.1(F).
From: Holloway, Jason
Good afternoon,
Below is what the Senate Criminal Justice Committee sent to me regarding the issue with the judge:
Good morning, Jason:
I hope you are having a great morning so far. I have done further research and wanted to follow up on the constituent issue we discussed on Monday. As I mentioned on the phone, the Florida Rules of Criminal procedure allow for motions to be filed to vacate a plea and sentence in certain limited circumstances and require such motions to be filed within a specified time frame. Without knowing more information of Mr. Grant’s case, it is unclear whether a court would be able to provide relief through such a motion. Included below is a summary of some case law related to the policy suggested in the email.
There are certain powers that are inherent and within the exclusive power of the courts, including, in part, procedural laws to control the administrative functioning of the courtroom. Woodel v. State, 804 So.2d 316 (Fla. 2001). A “procedural law” concerns the means and method to apply and enforce substantive duties and rights. Hall v. State, 823 So. 2d 757 (Fla. 2002). Generally, the power that is conferred upon the courts cannot be expanded or limited by the Legislature. Allen v. Butterworth, 756 So.2d 52 (Fla. 2000). However, courts have also held that if there has not been a rule or procedure promulgated on the issue at hand at the time of the Legislature's enactment (or at any time since) then the legislatively enacted statute does not intrude upon, the court's own rule. Looney v. State, 803 So. 2d 656 (Fla. 2001).
An example of legislative encroachment into procedural law can be seen in Allen. See Allen v. Butterworth, 756 So.2d 52 (Fla. 2001). The Legislature in 2000 passed the Death Penalty Reform Act (DPRA), which, in part, changed the deadlines for filing postconviction motions for death penalty cases. Upon becoming a law, several death row inmates challenged the act on several grounds, including that the changes to filing deadlines were considered to be procedural law. The Court held that modifications to filing deadlines were matters of practice and procedure that addressed the administration of the
June 28, 2019 Criminal Procedure Rules Committee 193 courtroom. As such, these provisions of the DPRA were struck down as an invalid encroachment of the court’s authority to adopt rules for the practice and procedure of the courts.
On the other hand, a provision of the Timely Justice Act, enacted in 2013, in part, required the clerk of the Supreme Court to certify in writing to the Governor that a capital defendant had completed certain postconviction proceedings, and required the Governor to issue a warrant for execution within 30 days after receiving letter of certification if the executive clemency process has concluded. These provisions were upheld as they did not unconstitutionally infringe on the court’s rule-making powers with respect to successive postconviction procedures. The Court reasoned that the provision does not impose a deadline on the clerk as to when certification must be made, the Governor has discretion not to issue a warrant if the clerk has not complied with certification requirements, and there is no time frame in the statute that dictates when Governor must decide if clerk has or has not provided required information. Abdool v. Bondi, 141 So.3d 529 (Fla. 2014).
In conclusion, a bill requiring a court to rule on specified motions within certain timeframes would likely be determined to be a procedural law as it directly relates to the practice and administration of the courtroom. To the extent that the courts have existing rules of procedure related to this practice, or to the extent that a court subsequently enacts rules addressing such timeframes, the bill could be held to be an invalid encroachment on the inherent powers of the court.
Best,
Jason Holloway Senior Legislative Assistant to State Senator Darryl Rouson Tallahassee Office: 212 Senate Office Building 404 South Monroe Street Tallahassee, FL 32399-1100 (850) 487-5019 [email protected]
June 28, 2019 Criminal Procedure Rules Committee 194 THE FLORIDA BAR CRIMINAL PROCEDURE RULES COMMITTEE
SUBCOMMITTEE ACTION REPORT
TO: Hon. Sheila Ann Loizos
FROM: Sheila Ann Loizos
Please be advised that the IOP Subcommittee conducted a meeting on March 4, 2019, by conference call to discuss docket number 19-03-IOP.
Subcommittee attendance was as follows:
Member Name Present Not Present Sheila Ann Loizos, Chair X Hon. Wendy Berger X Jason Bloch X David Thompson X Jane McNeill X Danielle Sherriff X
Additional participants included: Sam Masters, BOG Liaison Robert Scavone, Committee Member Heather Telfer, Bar Liaison
The Subcommittee took the following action:
1. Determined that the submission is within the scope of Subcommittee authority. YES
2. Made the following decision: The Subcommittee voted 3 to 3 to amend the IOPs to include a mandatory attendance at all Committee meetings subject to good cause exception. Thus, the amendment did not move forward to the Committee for review.
3. Prepared the attached written report detailing the legal reasoning for the action taken.
The Chair began the meeting by presenting the issue of whether the IOPs should be amended to require mandatory appearance at all Committee meetings, subject to good cause exceptions, due to the difficulties that arise when members appear telephonically rather than in person, which can make the meeting inefficient and unproductive for all. Danielle Sherriff noted that a majority of the members who appear telephonically are government attorneys due to budgetary issues, which would make their participation on
1 June 28, 2019 Criminal Procedure Rules Committee 195 the Committee difficult. Judge Berger stated that although she agreed it was best to attend the meetings in person, she was also sympathetic to the plight of government attorneys and noted that their voice is very important to the Committee. Jason Bloch agreed with the comments of both Danielle Sherriff and Judge Berger and acknowledged that being able to attend the Committee meetings telephonically is a tremendous convenience for attorneys who live far away from the location of the meeting, especially when there is only one item on the agenda. Jason Bloch suggested a compromise that would require members appearing telephonically to follow specific protocol before speaking or voting rather than randomly speaking without prior approval. Jane McNeill agreed that she was concerned that a ban on telephonic appearances could have a chilling effect upon the decision of government attorneys to apply, and she also acknowledged that the Committee obtains a better work product from the members when they are physically present at the meeting. Heather Telfer discussed the limitation on improving the current technology because the hotels all use the same vendor and the Bar cannot force them to change the contract. Heather Telfer also stated that using a program to allow members to vote remotely would not be feasible due to the speed that friendly amendments and language changes are made during a meeting. Thus, Heather Telfer thought the best decision would be an absolute ban on telephonic appearances, subject to good cause exceptions, rather than a compromise rule that allows a member to miss one or two of the three in-person meetings. However, she too agreed that she did not want attorneys to refuse to apply to the Committee due to travel concerns and indicated that as long as there were no more than six attorneys approved to appear by telephone, it would be manageable. After the discussion ended, the Subcommittee voted on whether attendance at all Committee meetings should be mandatory and the vote was 3 in favor (Sheila Loizos, David Thompson and Jane McNeill) and 3 against (Hon. Wendy Berger, Jason Bloch and Danielle Sherriff). Therefore, the requested amendment did not move forward for Committee review.
On May 1, 2019 as additional telephonic meeting was held for the subcommittee to consider subsection (d), proposed by Jason Bloch, which provided as follows:
d. Telephonic attendance. In-person attendance is strongly preferred and encouraged. Technology permitting, a member may request permission from the Chair to attend telephonically but telephonic attendance shall be limited to once per Bar year (July 1 through June 30). Ordinarily, a member appearing by phone is expected to provide his/her input on agenda items in writing no less than two hours before the meeting, with telephone participation generally limited to voting, responding to questions, and addressing matters newly raised in the meeting. The number of telephonic attendees per meeting may be limited by the Chair, with preference to government and non-profit members, and considering geographic, financial, and unforeseeable circumstances. (Provided that, once such limit is reached, additional members may participate by phone for the sole purpose of voting.). The Chair shall have discretion to relax the provisions of IOP 10.d.
Subcommittee members Sheila Loizos, Hon. Wendy Berger, Jason Bloch and Jane McNeill were present for the additional meeting along with Heather Telfer, Bar liaison.
2 June 28, 2019 Criminal Procedure Rules Committee 196
Sheila Loizos started off the discussion and stated that although Jason Bloch’s attempt to facilitate telephonic appearance by Committee members was well thought out and appreciated, the hardships were too great. Specifically, Sheila Loizos noted 1) that Heather Telfer would not be available to receive the agendas from members who wanted to appear telephonically within 2 hours of the meeting as she is usually finishing another meeting at that time and such a requirement would assume the internet was working properly; 2) that from the Secretary’s point of view, trying to incorporate written agendas into the minutes, especially when there is a friendly amendment that might change the member’s opinion, would be very difficult; 3) allowing written agendas to be submitted might actually increase the number of persons who request telephonic appearance and 4) it did not seem fair to give preference to government and non-profit attorneys for telephonic attendance when solo practitioners likely face the same financial burdens.
Hon. Wendy Berger agreed with Sheila Loizos’s comments. Jane McNeill also agreed and noted that the logistics would be too tough. Jason Bloch clarified that he was simply trying to make telephonic attendance more organized. Lastly, Heather Telfer noted that she cannot post on the website when she is not physically at her desk. There was a motion to vote not to adopt the proposed subsection, which Jane McNeill seconded. All 4 participating subcommittee members voted not to adopt the proposed addition of subsection 10.d.
The Subcommittee Chair is prepared to report to the full Committee at the meeting on June 28, 2019.
Sheila Ann Loizos Subcommittee Chair
cc: Committee Chair Committee Secretary The Florida Bar Liaison
3 June 28, 2019 Criminal Procedure Rules Committee 197 From: Loizos, Sheila
After the last meeting, I am all for it.
From: Telfer, Heather [mailto:[email protected]] Sent: Tuesday, February 12, 2019 9:42 AM To: Brewer, Courtney; Loizos, Sheila; Kypreos, Theodore S; 'Cristina Papanikos'; Magee, Christina; Gennusa, Anne M Subject: New Referral for IOP Subcommittee
Good Morning,
I would like each Committee’s IOP Subcommittee to consider amending their internal operating procedures to prohibit attendance by phone. Currently the Civil Procedure Rules Committee is the only Committee with such a policy.
From the Civil Procedure Rules Committee’s IOPs: Attendance. All members are expected to attend in-person meetings and actively participate, and to participate by the appropriate means in all meetings conducted electronically. The Chair has the authority to grant members excused absences for good cause.
Please let me know if you are willing to have me send this to the IOP Subcommittee for your Committee.
Thanks,
Heather
Heather Savage Telfer Attorney Liaison – Rules The Florida Bar 850-561-5702 [email protected]
June 28, 2019 Criminal Procedure Rules Committee 198 THE FLORIDA BAR CRIMINAL PROCEDURE RULES COMMITTEE
SUBCOMMITTEE ACTION REPORT
TO: Sheila Ann Loizos
FROM: Sheila Ann Loizos
Please be advised that the Fast Track Subcommittee conducted a meeting on June 5, 2019, by conference call to discuss docket number 17-07-VI and 19-10-FT.
Subcommittee attendance was as follows:
Member Name Present Not Present Sheila Ann Loizos, Chair X Hon. Wendy Berger X Jason Bloch X Roseanne Eckert X Rich Mantei X Jane McNeill X Danielle Sherriff X David Thompson X
Additional participants included: Bonita Jones-Peabody, Committee Member Heather Telfer, Bar Liaison Matt Whyte, Clerk Representative
The Subcommittee took the following action:
1. Determined that the submissions were within the scope of Subcommittee authority. YES
2. Made the following decisions: The Subcommittee voted to adopt the friendly amendment to Rule 3.116 made by the Chair regarding Docket No. 17-07-VI (Rule 3.116 and HB 409) and not to file a comment to Board of Governor Laird Liles’s comment and agreed that the Rules of Criminal Procedure do not need to be amended at this time based upon Docket No. 19-10-FT (2019 laws and specifically SB 168, Federal Immigration Enforcement).
3. Prepared the attached written report. Please detail the legal reasoning for the amendment.
1 June 28, 2019 Criminal Procedure Rules Committee 199
Docket No. 17-07-VI (Rule 3.116 RE: taking testimony and HB 409 RE: e-notaries)
Sheila Loizos started the meeting and explained that she had agreed to amend Rule 3.116 after the Committee’s vote to approve the rule so that the rule conformed with RJA’s Rule 2.530. Specifically, it was noted that when Rule 3.116 was initially passed, it used the phrase “communication equipment.” Then, when RJA passed Rule 2.530, it switched from using the phrase “communication equipment” to “communication technology,” which it defined as “video conference or comparable audio-video communication technology.” Based upon RJA’s switch in terminology, the Chair amended Rule 3.116 to use the phrase “audio-video communication technology” rather than “communication equipment” because the new phrase seemed more inclusive and consistent with the several different modes of technology that could be used to take testimony. It was discussed that Board of Governors member Laird Lile thought the committees should not define terms and should refer to RJA’s rules for definitions. It was also discussed that HB 409 uses the term “technology” rather than “equipment” and uses the term “audio video” rather than “audio visual.” In Mr. Lile’s comment, he acknowledged that the Board of Governor’s package of rules would move forward but he wanted to make a friendly amendment to move them forward with his concern in a comment. The Board of Governors voted to table the issue until its next meeting, which will be in July. Heather Telfer noted that the criminal rules have always been exempted from following RJA rules and that the Criminal Rules Committee voted to have their own rule regarding the taking of testimony, which is Rule 3.116. Heather Telfer also noted that Mr. Lile’s request to provide a comment is not properly before this subcommittee because once the rules package has been submitted to the Board of Governors, the rules are either approved or denied without comment. Roseanne Eckert moved to adopt the Chair’s prior amendment to Rule 3.116 changing the terminology to “audio-video communication technology” as a friendly amendment, which was seconded by Jane McNeill. The motion passed with all eight of the attending members voting to accept the friendly amendment to Rule 3.116.
RULE 3.116. TAKING TESTIMONY
(a) Testimony at Hearing or Trial. Upon stipulation of the parties, or upon motion of a party for good cause shown, the court may permit a witness to testify at criminal proceedings by contemporaneous audio-video communication equipmenttechnology that makes the witness visible to all parties, the judge, and any jury during the testimony.
(b) Communication Equipment. Any equipmenttechnology used must allow for the taking of contemporaneous video and there must be appropriate safeguards for the court to maintain sufficient control over the equipment and the transmission of the testimony so the court may stop the communication to accommodate objections or prevent prejudice.
2 June 28, 2019 Criminal Procedure Rules Committee 200 (c) Oath. If testimony is taken through audio-video communication equipmenttechnology, there must be a notary public or other person authorized to administer an oath that subjects the witness to prosecution for perjury upon making a knowingly false statement. The notary or other authorized person must be in the same location as the witness appearing remotely.
(d) Burden of Expense. The cost for the use of audio-video communication equipmenttechnology is the responsibility of the requesting party unless otherwise agreed by the parties or ordered by the court.
3 June 28, 2019 Criminal Procedure Rules Committee 201 Docket No. 19-10-FT (SB 168, Federal Immigration Enforcement, and 2019 Legislation)
Sheila Loizos started the discussion and noted that other than SB 168 there were no other new laws that passed for 2019 that required a rule amendment. Regarding SB 168, there was a general discussion about the new law. It was unclear to the subcommittee why 12 days was used. Judge Berger thought that the law was an avenue for the trial court to authorize the prison or jail to release an inmate a few days early to facilitate transportation to an ICE facility. Judge Berger also stated that it would be easy for a judge to comply with the reporting requirement if there was a box on the judgment and sentence that could be checked when there is an immigration detainer. However, Heather Telfer noted that when the judgment and sentence form was last amended, it was simplified to shorten the length of the form with a catch-all bracket where specific findings could be listed. Thus, the trial court could note on the judgment and sentence if there was an immigration detainer, which would comply with the new law. Jane McNeill noted that the law seems to put the burden on the law enforcement agency to notify the trial court when they want an inmate released early to facilitate a transfer. After the discussion, none of the subcommittee members thought that any of the 2019 laws, including SB 168, required action. Therefore, no action was taken on the referral.
The Subcommittee Chair is prepared to report to the full Committee at the meeting on June 28, 2019.
Sheila Ann Loizos Subcommittee Chair
cc: Committee Chair Committee Secretary The Florida Bar Liaison
rev. 10/14
4 June 28, 2019 Criminal Procedure Rules Committee 202 RULE 3.116. TAKING TESTIMONY
(a) Testimony at Hearing or Trial. Upon stipulation of the parties, or upon motion of a party for good cause shown, the court may permit a witness to testify at criminal proceedings by contemporaneous audio-video communication equipmenttechnology that makes the witness visible to all parties, the judge, and any jury during the testimony.
(b) Communication Equipment. Any equipmenttechnology used must allow for the taking of contemporaneous video and there must be appropriate safeguards for the court to maintain sufficient control over the equipment and the transmission of the testimony so the court may stop the communication to accommodate objections or prevent prejudice.
(c) Oath. If testimony is taken through audio-video communication equipmenttechnology, there must be a notary public or other person authorized to administer an oath that subjects the witness to prosecution for perjury upon making a knowingly false statement. The notary or other authorized person must be in the same location as the witness appearing remotely.
(d) Burden of Expense. The cost for the use of audio-video communication equipmenttechnology is the responsibility of the requesting party unless otherwise agreed by the parties or ordered by the court.
June 28, 2019 Criminal Procedure Rules Committee 203 CHAPTER 2019-71
Committee Substitute for Committee Substitute for House Bill No. 409
An act relating to electronic legal documents; providing directives to the Division of Law Revision; amending s. 117.01, F.S.; revising provisions relating to use of the office of notary public; amending s. 117.021, F.S.; requiring electronic signatures to include access protection; prohibiting a person from requiring a notary public to perform a notarial act with certain technology; requiring the Department of State, in collaboration with the Agency for State Technology, to adopt rules for certain purposes; amending s. 117.05, F.S.; revising limitations on notary fees to conform to changes made by the act; providing for inclusion of certain information in a jurat or notarial certificate; providing for compliance with online notarization requirements; providing for notarial certification of a printed electronic record; revising statutory forms for jurats and notarial certificates; amending s. 117.107, F.S.; providing applicability; revising prohibited acts; creating s. 117.201, F.S.; providing definitions; creating s. 117.209, F.S.; authorizing online notarizations; providing an exception; creating s. 117.215, F.S.; specifying the application of other laws in relation to online notarizations; creating s. 117.225, F.S.; specifying registration and qualification requirements for online notaries public; creating s. 117.235, F.S.; authorizing the performance of certain notarial acts; creating s. 117.245, F.S.; requiring an online notary public to keep electronic journals of online notarizations and certain audio-video com- munication recordings; specifying the information that must be included for each online notarization; requiring that an online notary public retain a copy of the recording of an audio-video communication; specifying requirements for such recording; requiring an online notary public to take certain steps regarding the maintenance and security of the electronic journal; specifying that the Department of State maintains jurisdiction for a specified period of time for purposes of investigating notarial mis- conduct; authorizing the use of specified information for evidentiary purposes; creating s. 117.255, F.S.; specifying requirements for the use of electronic journals, signatures, and seals; requiring an online notary public to provide notification of the theft, vandalism, or loss of an electronic journal, signature, or seal; authorizing an online notary public to make copies of electronic journal entries and to provide access to related recordings under certain circumstances; authorizing an online notary public to charge a fee for making and delivering such copies; providing an exception; creating s. 117.265, F.S.; prescribing online notarization procedures; specifying the manner by which an online notary public must verify the identity of a principal; requiring an online notary public to take certain measures as to the security of technology used; specifying that an electronic notarial certificate must identify the performance of an online notarization; specifying that noncompliance does not impair the validity of a notarial act or the notarized electronic record; authorizing the 1 CODING:June 28,Criminal Words 2019 stricken Procedure are deletions; Rules words Committee underlined are additions.204 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
use of specified information for evidentiary purposes; providing for construction; creating s. 117.275, F.S.; providing fees for online notariza- tions; creating s. 117.285, F.S.; specifying the manner by which an online notary public may supervise the witnessing of electronic records of online notarizations; specifying the circumstances under which an instrument is voidable; specifying the duties of Remote Online Notarization service providers and online notaries public; providing applicability and jurisdic- tion; creating s. 117.295, F.S.; authorizing the department to adopt rules and standards for online notarizations; providing minimum standards for online notarizations until such rules are adopted; requiring certain entities to provide a course for online notaries public; creating s. 117.305, F.S.; superseding certain provisions of federal law regulating electronic signatures; amending s. 28.222, F.S.; requiring the clerk of the circuit court to record certain instruments; amending s. 92.50, F.S.; revising requirements for oaths, affidavits, and acknowledgments; amending s. 95.231, F.S.; providing a limitation period for certain recorded instruments; amending s. 689.01, F.S.; providing for witnessing of documents in connection with real estate conveyances; providing for validation of certain recorded documents; amending s. 694.08, F.S.; providing for validation of certain recorded documents; amending s. 695.03, F.S.; providing and revising requirements for making acknowl- edgments, proofs, and other documents; amending s. 695.04, F.S.; conforming provisions to changes made by the act; amending s. 695.25, F.S.; revising the statutory short form of acknowledgments to include acknowledgment by online notarization; amending s. 695.28, F.S.; providing for validity of recorded documents; conforming provisions to changes made by the act; amending s. 709.2119, F.S.; authorizing the acceptance of a power of attorney based upon an electronic journal or electronic record made by a notary public; amending s. 709.2120, F.S.; prohibiting acceptance of a power of attorney if witnessed or notarized remotely; amending s. 709.2202, F.S.; prohibiting certain authority granted through a power of attorney if witnessed or notarized remotely; amending s. 731.201, F.S.; redefining the term “will” to conform to changes made by the act; amending s. 732.506, F.S.; exempting electronic wills from provisions governing the revocation of wills and codicils; prescribing the manner by which an electronic will or codicil may be revoked; creating s. 732.521, F.S.; providing definitions; creating s. 732.522, F.S.; prescribing the manner by which an electronic will must be executed; creating s. 732.523, F.S.; specifying requirements for the self- proof of an electronic will; creating s. 732.524, F.S.; specifying require- ments necessary to serve as a qualified custodian of an electronic will; providing the duties of such qualified custodian; creating s. 732.525, F.S.; requiring a qualified custodian to post and maintain a blanket surety bond of a specified amount and maintain liability insurance; authorizing the Attorney General to petition a court to appoint a receiver to manage electronic records of a qualified custodian; creating s. 732.526, F.S.; specifying conditions by which an electronic will is deemed to be an original will; amending s. 733.201, F.S.; requiring that self-proved electronic wills meet certain requirements for admission to probate; 2 CODING:June 28,WordsCriminal 2019 stricken Procedure are deletions; Rules words underlined Committee are additions.205 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
creating s. 740.11, F.S.; specifying that any act taken pursuant to ch. 740, F.S., does not affect the requirement that a will be deposited within a certain timeframe; providing effective dates.
Be It Enacted by the Legislature of the State of Florida:
Section 1. The Division of Law Revision is directed to:
(1) Create part I of chapter 117, Florida Statutes, consisting of ss. 117.01-117.108, Florida Statutes, to be entitled “General Provisions.” (2) Create part II of chapter 117, Florida Statutes, consisting of ss. 117.201-117.305, Florida Statutes, to be entitled “Online Notarizations.” Section 2. Subsection (1) of section 117.01, Florida Statutes, is amended to read:
117.01 Appointment, application, suspension, revocation, application fee, bond, and oath.— (1) The Governor may appoint as many notaries public as he or she deems necessary, each of whom must shall be at least 18 years of age and a legal resident of this the state. A permanent resident alien may apply and be appointed and shall file with his or her application a recorded Declaration of Domicile. The residence required for appointment must be maintained throughout the term of appointment. A notary public Notaries public shall be appointed for 4 years and may only shall use and exercise the office of notary public if he or she is within the boundaries of this state. An applicant must be able to read, write, and understand the English language.
Section 3. Subsections (4) and (5) of section 117.021, Florida Statutes, are renumbered as subsections (5) and (6), respectively, subsection (2) of that section is amended, and new subsections (4) and (7) are added to that section, to read:
117.021 Electronic notarization.— (2) In performing an electronic notarial act, a notary public shall use an electronic signature that is:
(a) Unique to the notary public;
(b) Capable of independent verification;
(c) Retained under the notary public’s sole control and includes access protection through the use of passwords or codes under control of the notary public; and
(d) Attached to or logically associated with the electronic document in a manner that any subsequent alteration to the electronic document displays evidence of the alteration. 3 CODING:June 28,Criminal Words 2019 stricken Procedure are deletions; Rules words Committee underlined are additions.206 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
(4) A person may not require a notary public to perform a notarial act with respect to an electronic record with a form of technology that the notary public has not selected to use.
(7) The Department of State, in collaboration with the Agency for State Technology, shall adopt rules establishing standards for tamper-evident technologies that will indicate any alteration or change to an electronic record after completion of an electronic notarial act. All electronic notariza- tions performed on or after January 1, 2020, must comply with the adopted standards.
Section 4. Subsection (1), paragraph (a) of subsection (2), subsections (4) and (5), paragraph (a) of subsection (12), and subsections (13) and (14) of section 117.05, Florida Statutes, are amended, and paragraph (c) is added to subsection (12) of that section, to read:
117.05 Use of notary commission; unlawful use; notary fee; seal; duties; employer liability; name change; advertising; photocopies; penalties.— (1) A No person may not shall obtain or use a notary public commission in other than his or her legal name, and it is unlawful for a notary public to notarize his or her own signature. Any person applying for a notary public commission must submit proof of identity to the Department of State if so requested. Any person who violates the provisions of this subsection commits is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2)(a) The fee of a notary public may not exceed $10 for any one notarial act, except as provided in s. 117.045 or s. 117.275.
(4) When notarizing a signature, a notary public shall complete a jurat or notarial certificate in substantially the same form as those found in subsection (13). The jurat or certificate of acknowledgment shall contain the following elements:
(a) The venue stating the location of the notary public at the time of the notarization in the format, “State of Florida, County of ...... ” (b) The type of notarial act performed, an oath or an acknowledgment, evidenced by the words “sworn” or “acknowledged.” (c) Whether That the signer personally appeared before the notary public at the time of the notarization by physical presence or by means of audio-video communication technology as authorized under part II of this chapter.
(d) The exact date of the notarial act.
(e) The name of the person whose signature is being notarized. It is presumed, absent such specific notation by the notary public, that notarization is to all signatures. 4 CODING:June 28,WordsCriminal 2019 stricken Procedure are deletions; Rules words underlined Committee are additions.207 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
(f) The specific type of identification the notary public is relying upon in identifying the signer, either based on personal knowledge or satisfactory evidence specified in subsection (5).
(g) The notary public’s notary’s official signature.
(h) The notary public’s notary’s name, which must be typed, printed, or stamped below the signature.
(i) The notary public’s notary’s official seal affixed below or to either side of the notary public’s notary’s signature.
(5) A notary public may not notarize a signature on a document unless he or she personally knows, or has satisfactory evidence, that the person whose signature is to be notarized is the individual who is described in and who is executing the instrument. A notary public shall certify in the certificate of acknowledgment or jurat the type of identification, either based on personal knowledge or other form of identification, upon which the notary public is relying. In the case of an online notarization, the online notary public shall comply with the requirements set forth in part II of this chapter.
(a) For purposes of this subsection, the term “personally knows” means having an acquaintance, derived from association with the individual, which establishes the individual’s identity with at least a reasonable certainty.
(b) For the purposes of this subsection, the term “satisfactory evidence” means the absence of any information, evidence, or other circumstances which would lead a reasonable person to believe that the person whose signature is to be notarized is not the person he or she claims to be and any one of the following:
1. The sworn written statement of one credible witness personally known to the notary public or the sworn written statement of two credible witnesses whose identities are proven to the notary public upon the presentation of satisfactory evidence that each of the following is true:
a. That the person whose signature is to be notarized is the person named in the document;
b. That the person whose signature is to be notarized is personally known to the witnesses;
c. That it is the reasonable belief of the witnesses that the circumstances of the person whose signature is to be notarized are such that it would be very difficult or impossible for that person to obtain another acceptable form of identification;
d. That it is the reasonable belief of the witnesses that the person whose signature is to be notarized does not possess any of the identification documents specified in subparagraph 2.; and 5 CODING:June 28,Criminal Words 2019 stricken Procedure are deletions; Rules words Committee underlined are additions.208 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
e. That the witnesses do not have a financial interest in nor are parties to the underlying transaction; or
2. Reasonable reliance on the presentation to the notary public of any one of the following forms of identification, if the document is current or has been issued within the past 5 years and bears a serial or other identifying number:
a. A Florida identification card or driver license issued by the public agency authorized to issue driver licenses;
b. A passport issued by the Department of State of the United States;
c. A passport issued by a foreign government if the document is stamped by the United States Bureau of Citizenship and Immigration Services;
d. A driver license or an identification card issued by a public agency authorized to issue driver licenses in a state other than Florida or in, a territory of the United States, or Canada or Mexico;
e. An identification card issued by any branch of the armed forces of the United States;
f. A veteran health identification card issued by the United States Department of Veterans Affairs;
g. An inmate identification card issued on or after January 1, 1991, by the Florida Department of Corrections for an inmate who is in the custody of the department;
h. An inmate identification card issued by the United States Department of Justice, Bureau of Prisons, for an inmate who is in the custody of the department;
i. A sworn, written statement from a sworn law enforcement officer that the forms of identification for an inmate in an institution of confinement were confiscated upon confinement and that the person named in the document is the person whose signature is to be notarized; or
j. An identification card issued by the United States Bureau of Citizen- ship and Immigration Services.
(12)(a) A notary public may supervise the making of a copy of a tangible or an electronic record or the printing of an electronic record photocopy of an original document and attest to the trueness of the copy or of the printout, provided the document is neither a vital record in this state, another state, a territory of the United States, or another country, nor a public record, if a copy can be made by the custodian of the public record. 6 CODING:June 28,WordsCriminal 2019 stricken Procedure are deletions; Rules words underlined Committee are additions.209 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
(c) A notary public must use a certificate in substantially the following form in notarizing a copy of a tangible or an electronic record or a printout of an electronic record:
STATE OF FLORIDA
COUNTY OF ......
On this ...... day of ...... , …(year)…, I attest that the preceding or attached document is a true, exact, complete, and unaltered …(copy of a tangible or an electronic record presented to me by the document’s custodian)… or a … (printout made by me from such record)…. If a printout, I further attest that, at the time of printing, no security features, if any, present on the electronic record, indicated that the record had been altered since execution.
…(Signature of Notary Public — State of Florida)…
…(Print, Type, or Stamp Commissioned Name of Notary Public)…
(13) The following notarial certificates are sufficient for the purposes indicated, if completed with the information required by this chapter. The specification of forms under this subsection does not preclude the use of other forms.
(a) For an oath or affirmation:
STATE OF FLORIDA
COUNTY OF ......
Sworn to (or affirmed) and subscribed before me by means of ☐ physical presence or ☐ online notarization, this ...... day of ...... , …(year)…, by … (name of person making statement)….
…(Signature of Notary Public - State of Florida)…
…(Print, Type, or Stamp Commissioned Name of Notary Public)… Personally Known ...... OR Produced Identification ......
Type of Identification Produced ......
(b) For an acknowledgment in an individual capacity:
STATE OF FLORIDA 7 CODING:June 28,Criminal Words 2019 stricken Procedure are deletions; Rules words Committee underlined are additions.210 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
COUNTY OF ......
The foregoing instrument was acknowledged before me by means of ☐ physical presence or ☐ online notarization, this ...... day of ...... , …(year) …, by …(name of person acknowledging)….
…(Signature of Notary Public - State of Florida)…
…(Print, Type, or Stamp Commissioned Name of Notary Public)…
Personally Known ...... OR Produced Identification ......
Type of Identification Produced ......
(c) For an acknowledgment in a representative capacity:
STATE OF FLORIDA
COUNTY OF ......
The foregoing instrument was acknowledged before me by means of ☐ physical presence or ☐ online notarization, this ...... day of ...... , …(year) …, by …(name of person)… as …(type of authority, . . . e.g. officer, trustee, attorney in fact)… for …(name of party on behalf of whom instrument was executed)….
…(Signature of Notary Public - State of Florida)…
…(Print, Type, or Stamp Commissioned Name of Notary Public)…
Personally Known ...... OR Produced Identification ......
Type of Identification Produced ......
(14) A notary public must make reasonable accommodations to provide notarial services to persons with disabilities.
(a) A notary public may notarize the signature of a person who is blind after the notary public has read the entire instrument to that person.
(b) A notary public may notarize the signature of a person who signs with a mark if:
1. The document signing is witnessed by two disinterested persons; 8 CODING:June 28,WordsCriminal 2019 stricken Procedure are deletions; Rules words underlined Committee are additions.211 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
2. The notary public prints the person’s first name at the beginning of the designated signature line and the person’s last name at the end of the designated signature line; and
3. The notary public prints the words “his (or her) mark” below the person’s signature mark.
(c) The following notarial certificates are sufficient for the purpose of notarizing for a person who signs with a mark:
1. For an oath or affirmation:
…(First Name)……(Last Name)…
…His (or Her) Mark…
STATE OF FLORIDA
COUNTY OF ......
Sworn to and subscribed before me by means of ☐ physical presence or ☐ online notarization, this ...... day of ...... , …(year)…, by …(name of person making statement)…, who signed with a mark in the presence of these witnesses:
…(Signature of Notary Public - State of Florida)…
…(Print, Type, or Stamp Commissioned Name of Notary Public)…
Personally Known ...... OR Produced Identification ......
Type of Identification Produced ......
2. For an acknowledgment in an individual capacity:
…(First Name)……(Last Name)…
…His (or Her) Mark…
STATE OF FLORIDA
COUNTY OF ......
The foregoing instrument was acknowledged before me by means of ☐ physical presence or ☐ online notarization, this ...... day of ...... , …(year) 9 CODING:June 28,Criminal Words 2019 stricken Procedure are deletions; Rules words Committee underlined are additions.212 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
…, by …(name of person acknowledging)…, who signed with a mark in the presence of these witnesses:
…(Signature of Notary Public - State of Florida)…
…(Print, Type, or Stamp Commissioned Name of Notary Public)…
Personally Known ...... OR Produced Identification ......
Type of Identification Produced ......
(d) A notary public may sign the name of a person whose signature is to be notarized when that person is physically unable to sign or make a signature mark on a document if:
1. The person with a disability directs the notary public to sign in his or her presence by verbal, written, or other means;
2. The document signing is witnessed by two disinterested persons; and
3. The notary public writes below the signature the following statement: “Signature affixed by notary, pursuant to s. 117.05(14), Florida Statutes,” and states the circumstances and the means by which the notary public was directed to sign of the signing in the notarial certificate.
The notary public must maintain the proof of direction and authorization to sign on behalf of the person with a disability for 10 years from the date of the notarial act.
(e) The following notarial certificates are sufficient for the purpose of notarizing for a person with a disability who directs the notary public to sign his or her name:
1. For an oath or affirmation:
STATE OF FLORIDA
COUNTY OF ......
Sworn to (or affirmed) before me by means of ☐ physical presence or ☐ online notarization, this ...... day of ...... , …(year)…, by …(name of person making statement)…, and subscribed by …(name of notary)… at the direction of and in the presence of …(name of person making statement) …by …(written, verbal, or other means)…, and in the presence of these witnesses:
…(Signature of Notary Public - State of Florida)… 10 CODING:June 28,WordsCriminal 2019 stricken Procedure are deletions; Rules words underlined Committee are additions.213 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
…(Print, Type, or Stamp Commissioned Name of Notary Public)… Personally Known ...... OR Produced Identification ...... Type of Identification Produced ......
2. For an acknowledgment in an individual capacity:
STATE OF FLORIDA COUNTY OF ......
The foregoing instrument was acknowledged before me by means of ☐ physical presence or ☐ online notarization, this ...... day of ...... , …(year) …, by …(name of person acknowledging)… and subscribed by …(name of notary)… at the direction of and in the presence of …(name of person acknowledging)…, and in the presence of these witnesses:
…(Signature of Notary Public - State of Florida)…
…(Print, Type, or Stamp Commissioned Name of Notary Public)… Personally Known ...... OR Produced Identification ......
Type of Identification Produced ......
Section 5. Subsections (2) and (9) of section 117.107, Florida Statutes, are amended to read:
117.107 Prohibited acts.— (2) A notary public may not sign notarial certificates using a facsimile signature stamp unless the notary public has a physical disability that limits or prohibits his or her ability to make a written signature and unless the notary public has first submitted written notice to the Department of State with an exemplar of the facsimile signature stamp. This subsection does not apply to or prohibit the use of an electronic signature and seal by a notary public who is registered as an online notary public to perform an electronic or online notarization in accordance with this chapter. (9) A notary public may not notarize a signature on a document if the person whose signature is being notarized does not appear before the notary public either by means of physical presence or by means of audio-video communication technology as authorized under part II of this chapter is not in the presence of the notary public at the time the signature is notarized. Any notary public who violates this subsection is guilty of a civil infraction, punishable by penalty not exceeding $5,000, and such violation constitutes malfeasance and misfeasance in the conduct of official duties. It is no defense 11 CODING:June 28,Criminal Words 2019 stricken Procedure are deletions; Rules words Committee underlined are additions.214 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71 to the civil infraction specified in this subsection that the notary public acted without intent to defraud. A notary public who violates this subsection with the intent to defraud is guilty of violating s. 117.105.
Section 6. Section 117.201, Florida Statutes, is created to read:
117.201 Definitions.—As used in this part, the term:
(1) “Appear before,”“before,” or “in the presence of” mean: (a) In the physical presence of another person; or (b) Outside of the physical presence of another person, but able to see, hear, and communicate with the person by means of audio-video commu- nication technology.
(2) “Audio-video communication technology” means technology in com- pliance with applicable law which enables real-time, two-way communica- tion using electronic means in which participants are able to see, hear, and communicate with one another.
(3) “Credential analysis” means a process or service, in compliance with applicable law, in which a third party aids a public notary in affirming the validity of a government-issued identification credential and data thereon through review of public or proprietary data sources.
(4) “Electronic,”“electronic record,” or “electronic signature” has the same meaning as provided in s. 668.50.
(5) “Errors and omissions insurance” means a type of insurance that provides coverage for potential errors or omissions in or relating to the notarial act and is maintained, as applicable, by the online notary public or his or her employer, or a Remote Online Notarization service provider.
(6) “Government-issued identification credential” means any approved credential for verifying identity under s. 117.05(5)(b)2.
(7) “Identity proofing” means a process or service in compliance with applicable law in which a third party affirms the identity of an individual through use of public or proprietary data sources, which may include by means of knowledge-based authentication or biometric verification.
(8) “Knowledge-based authentication” means a form of identity proofing based on a set of questions which pertain to an individual and are formulated from public or proprietary data sources.
(9) “Online notarization” means the performance of a notarial act using electronic means in which the principal appears before the notary public by means of audio-video communication technology.
(10) “Online notary public” means a notary public commissioned under part I of this chapter, a civil-law notary appointed under chapter 118, or a 12 CODING:June 28,WordsCriminal 2019 stricken Procedure are deletions; Rules words underlined Committee are additions.215 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71 commissioner of deeds appointed under part IV of chapter 721, who has registered with the Department of State to perform online notarizations under this part.
(11) “Physical presence” means being in the same physical location as another person and close enough to see, hear, communicate with, and exchange credentials with that person.
(12) “Principal” means an individual whose electronic signature is acknowledged, witnessed, or attested to in an online notarization or who takes an oath or affirmation administered by the online notary public.
(13) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form, including public records as defined in s. 119.011.
(14) “Remote Online Notarization service provider” or “RON service provider” means a person that provides audio-video communication tech- nology and related processes, services, software, data storage, or other services to online notaries public for the purpose of directly facilitating their performance of online notarizations in compliance with this chapter and any rules adopted by the Department of State pursuant to s. 117.295.
(15) “Remote presentation” means transmission of an image of a government-issued identification credential that is of sufficient quality to enable the online notary public to identify the individual seeking the notary’s services and to perform credential analysis through audio-video communication technology.
Section 7. Section 117.209, Florida Statutes, is created to read:
117.209 Authority to perform online notarizations.—
(1) An online notary public may perform any of the functions authorized under part I of this chapter as an online notarization by complying with the requirements of this part and any rules adopted by the Department of State pursuant to s. 117.295, excluding solemnizing the rites of matrimony.
(2) If a notarial act requires a principal to appear before or in the presence of the online notary public, the principal may appear before the online notary public by means of audio-video communication technology that meets the requirements of this part and any rules adopted by the Department of State pursuant to s. 117.295.
(3) An online notary public physically located in this state may perform an online notarization as authorized under this part, regardless of whether the principal or any witnesses are physically located in this state at the time of the online notarization. A commissioner of deeds registered as an online notary public may perform an online notarization while physically located within or outside the state in accordance with the territorial limits of its 13 CODING:June 28,Criminal Words 2019 stricken Procedure are deletions; Rules words Committee underlined are additions.216 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71 jurisdiction and other limitations and requirements otherwise applicable to notarial acts by commissioners of deeds.
(4) The validity of an online notarization performed by an online notary public registered in this state shall be determined by applicable laws of this state regardless of the physical location of the principal or any witnesses at the time of the notarial act.
Section 8. Section 117.215, Florida Statutes, is created to read:
117.215 Relation to other laws.— (1) If a provision of law requires a notary public or other authorized official of this state to notarize a signature or a statement, to take an acknowledgment of an instrument, or to administer an oath or affirmation so that a document may be sworn, affirmed, made under oath, or subject to penalty of perjury, an online notarization performed in accordance with the provisions of this part and any rules adopted hereunder satisfies such requirement.
(2) If a provision of law requires a signature or an act to be witnessed, compliance with the online electronic witnessing standards prescribed in s. 117.285 and any rules adopted thereunder satisfies that requirement.
Section 9. Section 117.225, Florida Statutes, is created to read:
117.225 Registration; qualifications.—A notary public, a civil-law notary appointed under chapter 118, or a commissioner of deeds appointed under part IV of chapter 721 may complete registration as an online notary public with the Department of State by:
(1) Holding a current commission as a notary public under part I of this chapter, an appointment as a civil-law notary under chapter 118, or an appointment as a commissioner of deeds under part IV of chapter 721, and submitting a copy of such commission or proof of such appointment with his or her registration.
(2) Certifying that the notary public, civil-law notary, or commissioner of deeds registering as an online notary public has completed a classroom or online course covering the duties, obligations, and technology requirements for serving as an online notary public.
(3) Paying a notary public registration fee as required by s. 113.01.
(4) Submitting a registration as an online notary public to the Depart- ment of State, signed and sworn to by the registrant.
(5) Identifying the RON service provider whose audio-video communica- tion technology and processes for credential analysis and identity proofing technologies the registrant intends to use for online notarizations, and confirming that such technology and processes satisfy the requirements of 14 CODING:June 28,WordsCriminal 2019 stricken Procedure are deletions; Rules words underlined Committee are additions.217 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
this chapter and any rules adopted by the Department of State pursuant to s. 117.295.
(6) Providing evidence satisfactory to the Department of State that the registrant has obtained a bond in the amount of $25,000, payable to any individual harmed as a result of a breach of duty by the registrant acting in his or her official capacity as an online notary public, conditioned for the due discharge of the office, and on such terms as are specified in rule by the Department of State as reasonably necessary to protect the public. The bond shall be approved and filed with the Department of State and executed by a surety company duly authorized to transact business in this state. Compliance by an online notary public with this requirement shall satisfy the requirement of obtaining a bond under s. 117.01(7).
(7) Providing evidence satisfactory to the Department of State that the registrant acting in his or her capacity as an online notary public is covered by an errors and omissions insurance policy from an insurer authorized to transact business in this state, in the minimum amount of $25,000 and on such terms as are specified by rule by the Department of State as reasonably necessary to protect the public.
Section 10. Section 117.235, Florida Statutes, is created to read:
117.235 Performance of notarial acts.— (1) An online notary public is subject to part I of this chapter to the same extent as a notary public appointed and commissioned only under that part, including the provisions of s. 117.021 relating to electronic notarizations.
(2) An online notary public may perform notarial acts as provided by part I of this chapter in addition to performing online notarizations as authorized and pursuant to the provisions of this part.
Section 11. Section 117.245, Florida Statutes, is created to read:
117.245 Electronic journal of online notarizations.— (1) An online notary public shall keep one or more secure electronic journals of online notarizations performed by the online notary public. For each online notarization, the electronic journal entry must contain all of the following:
(a) The date and time of the notarization.
(b) The type of notarial act.
(c) The type, the title, or a description of the electronic record or proceeding.
(d) The name and address of each principal involved in the transaction or proceeding. 15 CODING:June 28,Criminal Words 2019 stricken Procedure are deletions; Rules words Committee underlined are additions.218 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
(e) Evidence of identity of each principal involved in the transaction or proceeding in any of the following forms:
1. A statement that the person is personally known to the online notary public.
2. A notation of the type of government-issued identification credential provided to the online notary public.
(f) An indication that the principal satisfactorily passed the identity proofing.
(g) An indication that the government-issued identification credential satisfied the credential analysis.
(h) The fee, if any, charged for the notarization.
(2) The online notary public shall retain an uninterrupted and unedited copy of the recording of the audio-video communication in which an online notarization is performed. The recording must include all of the following:
(a) Appearance by the principal and any witness before the online notary public.
(b) Confirmation of the identity of the principal and any witness.
(c) A general description or identification of the records to be signed.
(d) At the commencement of the recording, recitation by the online notary public of information sufficient to identify the notarial act.
(e) A declaration by the principal that his or her signature on the record is knowingly and voluntarily made.
(f) All of the actions and spoken words of the principal, notary public, and any required witness during the entire online notarization, including the signing of any records before the online notary public.
(3) The online notary public shall take reasonable steps to:
(a) Ensure the integrity, security, and authenticity of online notariza- tions.
(b) Maintain a backup record of the electronic journal required by subsection (1).
(c) Protect the electronic journal, the backup record, and any other records received by the online notary public from unauthorized access or use.
(4) The electronic journal required under subsection (1) and the record- ings of audio-video communications required under subsection (2) shall be maintained for at least 10 years after the date of the notarial act. However, a 16 CODING:June 28,WordsCriminal 2019 stricken Procedure are deletions; Rules words underlined Committee are additions.219 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
full copy of the recording of the audio-video communication required under subsection (2) relating to an online notarization session that involves the signing of an electronic will must be maintained by a qualified custodian in accordance with chapters 731 and 732. The Department of State maintains jurisdiction over the electronic journal and audio-video communication recordings to investigate notarial misconduct for a period of 10 years after the date of the notarial act. The online notary public, a guardian of an incapacitated online notary public, or the personal representative of a deceased online notary public may, by contract with a secure repository in accordance with any rules established under this chapter, delegate to the repository the online notary public’s duty to retain the electronic journal and the required recordings of audio-video communications, provided that the Department of State is notified of such delegation of retention duties to the repository within 30 days thereafter, including the address and contact information for the repository. If an online notary public delegates to a secure repository under this section, the online notary public shall make an entry in his or her electronic journal identifying such repository, and provide notice to the Department of State as required in this subsection.
(5) An omitted or incomplete entry in the electronic journal does not impair the validity of the notarial act or of the electronic record which was notarized, but may be introduced as evidence to establish violations of this chapter; as evidence of possible fraud, forgery, impersonation, duress, incapacity, undue influence, minority, illegality, unconscionability; or for other evidentiary purposes. However, if the recording of the audio-video communication required under subsection (2) relating to the online notarization of the execution of an electronic will cannot be produced by the online notary public or the qualified custodian, the electronic will shall be treated as a lost or destroyed will subject to s. 733.207.
Section 12. Section 117.255, Florida Statutes, is created to read:
117.255 Use of electronic journal, signature, and seal.—An online notary public shall:
(1) Take reasonable steps to ensure that any registered device used to create an electronic seal is current and has not been revoked or terminated by the issuing or registering authority of the device.
(2) Keep the electronic journal and electronic seal secure and under his or her sole control, which includes access protection using passwords or codes under control of the online notary public. The online notary public may not allow another person to use the online notary public’s electronic journal, electronic signature, or electronic seal, other than a RON service provider or other authorized person providing services to an online notary public to facilitate performance of online notarizations.
(3) Attach or logically associate the electronic signature and seal to the electronic notarial certificate of an electronic record in a manner that is capable of independent verification using tamper-evident technology that 17 CODING:June 28,Criminal Words 2019 stricken Procedure are deletions; Rules words Committee underlined are additions.220 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71 renders any subsequent change or modification to the electronic record evident.
(4) Notify an appropriate law enforcement agency and the Department of State of any unauthorized use of or compromise to the security of the electronic journal, official electronic signature, or electronic seal within 7 days after discovery of such unauthorized use or compromise to security.
(5) Make electronic copies, upon request, of the pertinent entries in the electronic journal and provide access to the related audio-video commu- nication recordings to the following persons:
(a) The parties to an electronic record notarized by the online notary public;
(b) The qualified custodian of an electronic will notarized by the online notary public;
(c) The title agent, settlement agent, or title insurer who insured the electronic record or engaged the online notary public with regard to a real estate transaction;
(d) The online notary public’s RON service provider whose services were used by the online notary public to notarize the electronic record;
(e) Any person who is asked to accept a power of attorney that was notarized by the online notary public;
(f) The Department of State pursuant to a notary misconduct investiga- tion; and
(g) Any other persons pursuant to a subpoena, court order, law enforcement investigation, or other lawful inspection demand.
(6) The online notary public may charge a fee not to exceed $20 per transaction record for making and delivering electronic copies of a given series of related electronic records, except if requested by:
(a) A party to the electronic record;
(b) In a real estate transaction, the title agent, settlement agent, or title insurer who insured the electronic record or engaged the online notary public with regard to such transaction; or
(c) The Department of State pursuant to an investigation relating to the official misconduct of an online notary public.
If the online notary public does charge a fee, the online notary public shall disclose the amount of such fee to the requester before making the electronic copies.
Section 13. Section 117.265, Florida Statutes, is created to read: 18 CODING:June 28,WordsCriminal 2019 stricken Procedure are deletions; Rules words underlined Committee are additions.221 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
117.265 Online notarization procedures.—
(1) An online notary public physically located in this state may perform an online notarization that meets the requirements of this part regardless of whether the principal or any witnesses are physically located in this state at the time of the online notarization. A commissioner of deeds registered as an online notary public may perform an online notarization while physically located within or outside of this state in accordance with the territorial limits of its jurisdiction and other limitations and requirements otherwise applicable to notarial acts by commissioners of deeds. An online notarization performed in accordance with this chapter is deemed to have been performed within this state and is governed by the applicable laws of this state.
(2) In performing an online notarization, an online notary public shall confirm the identity of a principal and any witness appearing online, at the time that the signature is taken, by using audio-video communication technology and processes that meet the requirements of this part and of any rules adopted hereunder and record the two-way audio-video conference session between the notary public and the principal and any witnesses. A principal may not act in the capacity of a witness for his or her own signature in an online notarization.
(3) In performing an online notarization of a principal not located within this state, an online notary public must confirm, either verbally or through the principal’s written consent, that the principal desires for the notarial act to be performed by a Florida notary public and under the general law of this state.
(4) An online notary public shall confirm the identity of the principal by:
(a) Personal knowledge of each principal; or
(b) All of the following, as such criteria may be modified or supplemented in rules adopted by the Department of State pursuant to s. 117.295:
1. Remote presentation of a government-issued identification credential by each principal.
2. Credential analysis of each government-issued identification creden- tial.
3. Identity proofing of each principal in the form of knowledge-based authentication or another method of identity proofing that conforms to the standards of this chapter.
If the online notary public is unable to satisfy subparagraphs (b)1.-3., or if the databases consulted for identity proofing do not contain sufficient information to permit authentication, the online notary public may not perform the online notarization. 19 CODING:June 28,Criminal Words 2019 stricken Procedure are deletions; Rules words Committee underlined are additions.222 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
(5) An online notary public may change his or her RON service provider or providers from time to time, but shall notify the Department of State of such change within 30 days thereafter.
(6) The online notary public or his or her RON service provider shall take reasonable steps to ensure that the audio-video communication technology used in an online notarization is secure from unauthorized interception.
(7) The electronic notarial certificate for an online notarization must include a notation that the notarization is an online notarization which may be satisfied by placing the term “online notary” in or adjacent to the online notary public’s seal. (8) Except where otherwise expressly provided in this part, the provi- sions of part I of this chapter apply to an online notarization and an online notary public.
(9) Any failure to comply with the online notarization procedures set forth in this section does not impair the validity of the notarial act or the electronic record that was notarized, but may be introduced as evidence to establish violations of this chapter or as an indication of possible fraud, forgery, impersonation, duress, incapacity, undue influence, minority, illegality, unconscionability, or for other evidentiary purposes. This subsec- tion may not be construed to alter the duty of an online notary public to comply with this chapter and any rules adopted hereunder.
Section 14. Section 117.275, Florida Statutes, is created to read:
117.275 Fees for online notarization.—An online notary public or the employer of such online notary public may charge a fee, not to exceed $25, for performing an online notarization under this part. Fees for services other than notarial acts are not governed by this section.
Section 15. Section 117.285, Florida Statutes, is created to read:
117.285 Supervising the witnessing of electronic records.—An online notary public may supervise the witnessing of electronic records by the same audio-video communication technology used for online notarization, as follows:
(1) The witness may be in the physical presence of the principal or remote from the principal provided the witness and principal are using audio-video communication technology.
(2) If the witness is remote from the principal and viewing and communicating with the principal by means of audio-video communication technology, the witness’s identity must be verified in accordance with the procedures for identifying a principal as set forth in s. 117.265(4). If the witness is in the physical presence of the principal, the witness must confirm his or her identity by stating his or her name and current address on the audio-video recording as part of the act of witnessing. 20 CODING:June 28,WordsCriminal 2019 stricken Procedure are deletions; Rules words underlined Committee are additions.223 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
(3) The act of witnessing an electronic signature means the witness is either in the physical presence of the principal or present through audio- video communication technology at the time the principal affixes the electronic signature and the witness hears the principal make a statement to the effect that the principal has signed the electronic record.
(4) A witness remote from the principal and appearing through audio- video communication technology must verbally confirm that he or she is a resident of and physically located within the United States or a territory of the United States at the time of witnessing.
(5) Notwithstanding subsections (2) and (3), if an electronic record to be signed is a will under chapter 732, a trust with testamentary aspects under chapter 736, a health care advance directive, a waiver of spousal rights under s. 732.701 or s. 732.702, or a power of attorney authorizing any of the transactions enumerated in s. 709.2208, the following shall apply:
(a) Prior to facilitating witnessing of an instrument by means of audio- video communication technology, a RON service provider shall require the principal to answer the following questions in substantially the following form:
1. Are you under the influence of any drug or alcohol today that impairs your ability to make decisions?
2. Do you have any physical or mental condition or long-term disability that impairs your ability to perform the normal activities of daily living?
3. Do you require assistance with daily care?
(b) If any question required under paragraph (a) is answered in the affirmative, the principal’s signature on the instrument may only be validly witnessed by witnesses in the physical presence of the principal at the time of signing.
(c) Subsequent to submission of the answers required under paragraph (a), the RON service provider shall give the principal written notice in substantially the following form:
NOTICE: If you are a vulnerable adult as defined in s. 415.102, Florida Statutes, the documents you are about to sign are not valid if witnessed by means of audio-video communication technology. If you suspect you may be a vulnerable adult, you should have witnesses physically present with you before signing.
(d) The act of witnessing an electronic signature through the witness’s presence by audio-video communication technology is valid only if, during the audio-video communication, the principal provides verbal answers to all 21 CODING:June 28,Criminal Words 2019 stricken Procedure are deletions; Rules words Committee underlined are additions.224 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71 of the following questions, each of which must be asked by the online notary public in substantially the following form:
1. Are you currently married? If so, name your spouse.
2. Please state the names of anyone who assisted you in accessing this video conference today.
3. Please state the names of anyone who assisted you in preparing the documents you are signing today.
4. Where are you currently located?
5. Who is in the room with you?
(e) An online notary public shall consider the responses to the questions specified in paragraph (d) in carrying out of the duties of a notary public as set forth in s. 117.107(5).
(f) A principal’s responses to the questions in paragraphs (a) and (d) may be offered as evidence regarding the validity of the instrument, but an incorrect answer may not serve as the sole basis to invalidate an instrument.
(g) The presence of a witness with the principal at the time of signing by means of audio-video communication technology is not effective for witnes- sing the signature of a principal who is a vulnerable adult as defined in s. 415.102. The contestant of an electronic record has the burden of proving that the principal was a vulnerable adult at the time of executing the electronic record.
(h) Nothing in this subsection shall preclude a power of attorney, which includes banking or investment powers enumerated in s. 709.2208, from being effective with respect to any other authority granted therein or with respect to the agent’s authority in connection with a real property, commercial, or consumer transaction or loan, to exercise any power specified therein or to execute and deliver instruments obligating the principal or to draw upon the proceeds of such transaction or loan.
(i) The electronic record containing an instrument signed by witnesses who were present with the principal by means of audio-video communication technology shall contain a perceptible indication of their presence by such means.
(j) Nothing in this subsection shall affect the application of s. 709.2119.
(6) Pursuant to subpoena, court order, an authorized law enforcement inquiry, or other lawful request, a RON service provider or online notary public shall provide: 22 CODING:June 28,WordsCriminal 2019 stricken Procedure are deletions; Rules words underlined Committee are additions.225 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
(a) The last known address of each witness who witnessed the signing of an electronic record using audio-video communication technology under this section.
(b) A principal’s responses to the questions in paragraphs (5)(a) or (b), as applicable.
(c) An uninterrupted and unedited copy of the recording of the audio- video communication in which an online notarization is performed.
(7) Except as set forth in s. 709.2202, an act of witnessing performed pursuant to this section satisfies any requirement that the witness must be a subscribing or attesting witness or must be in the presence of the principal at the time of signing.
(8) The law of this state governs the validity of witnessing supervised by an online notary public pursuant to this section, regardless of the physical location of the witness at the time of witnessing. State and federal courts in this state have subject matter jurisdiction over any dispute arising out of an act of witnessing pursuant to this section, and may issue subpoenas for records or to require the appearance of witnesses in relation thereto in accordance with applicable law.
Section 16. Effective upon becoming a law, section 117.295, Florida Statutes, is created to read:
117.295 Standards for electronic and online notarization; rulemaking authority.—
(1) For purposes of this part, the Department of State may adopt rules necessary to implement the requirements of this chapter and to set standards for online notarization which include, but are not limited to:
(a) Improvements in technology and methods of assuring the identity of principals and the security of an electronic record, including tamper-evident technologies in compliance with the standards adopted pursuant to s. 117.021 which apply to online notarizations.
(b) Education requirements for online notaries public and the required terms of bonds and errors and omissions insurance, but not including the amounts of such bonds and insurance policies.
(c) Identity proofing, credential analysis, unauthorized interception, remote presentation, audio-video communication technology, and retention of electronic journals and copies of audio-video communications recordings in a secure repository.
(2) By January 1, 2020, the Department of State shall adopt forms, processes, and interim or emergency rules necessary to accept applications from and register online notaries public pursuant to s. 117.225. 23 CODING:June 28,Criminal Words 2019 stricken Procedure are deletions; Rules words Committee underlined are additions.226 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
(3) Until such time as the Department of State adopts rules setting standards that are equally or more protective, the following minimum standards shall apply to any online notarization performed by an online notary public of this state or his or her RON service provider:
(a) Use of identity proofing by means of knowledge-based authentication which must have, at a minimum, the following security characteristics:
1. The principal must be presented with five or more questions with a minimum of five possible answer choices per question.
2. Each question must be drawn from a third-party provider of public and proprietary data sources and be identifiable to the principal’s social security number or other identification information, or the principal’s identity and historical events records.
3. Responses to all questions must be made within a 2-minute time constraint.
4. The principal must answer a minimum of 80 percent of the questions correctly.
5. The principal may be offered one additional attempt in the event of a failed attempt.
6. During the second attempt, the principal may not be presented with more than three questions from the prior attempt.
(b) Use of credential analysis using one or more commercially available automated software or hardware processes that are consistent with sound commercial practices; that aid the notary public in verifying the authenticity of the credential by analyzing the integrity of visual, physical, or crypto- graphic security features to indicate that the credential is not fraudulent or inappropriately modified; and that use information held or published by the issuing source or authoritative source, as available, to confirm the validity of credential details. The output of the credential analysis process must be provided to the online notary public performing the notarial act.
(c) Use of audio-video communication technology in completing online notarizations that must meet the following requirements:
1. The signal transmission must be reasonably secure from interception, access, or viewing by anyone other than the participants communicating.
2. The technology must provide sufficient audio clarity and video resolution to enable the notary to communicate with the principal and any witness, and to confirm the identity of the principal and any witness, as required, using the identification methods described in s. 117.265. 24 CODING:June 28,WordsCriminal 2019 stricken Procedure are deletions; Rules words underlined Committee are additions.227 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
(4) A RON service provider is deemed to have satisfied tamper-evident technology requirements by use of technology that renders any subsequent change or modification to the electronic record evident.
(5) In addition to any coverage it elects to provide for individual online notaries public, maintenance of errors and omissions insurance coverage by a RON service provider in a total amount of at least $250,000 in the annual aggregate with respect to potential errors or omissions in or relating to the technology or processes provided by the RON service provider. An online notary public is not responsible for the security of the systems used by the principal or others to access the online notarization session.
(6) A 2-hour in-person or online course addressing the duties, obliga- tions, and technology requirements for serving as an online notary public offered by the Florida Land Title Association; the Real Property, Probate and Trust Law Section of the Florida Bar; the Florida Legal Education Association, Inc.; the Department of State; or a vendor approved by the Department of State shall satisfy the education requirements of s. 117.225(2). Each such provider shall make the in-person or online course generally available to all applicants. Regardless of membership in the provider’s organization, the provider shall charge each attendee the same cost for the course unless the course is provided in conjunction with a regularly scheduled meeting of the provider’s membership. (7) The rulemaking required under this section is exempt from s. 120.541(3).
Section 17. Section 117.305, Florida Statutes, is created to read:
117.305 Relation to federal law.—This part supersedes the Electronic Signatures in Global and National Commerce Act as authorized under 15 U.S.C. s. 7001 et seq., but does not modify, limit, or supersede s. 101(c) of that act, 15 U.S.C. s. 7001(c), or authorize the electronic delivery of the notices described in 15 U.S.C. s. 7003(b).
Section 18. Paragraph (h) of subsection (3) of section 28.222, Florida Statutes, is redesignated as paragraph (i), and a new paragraph (h) is added to that subsection to read:
28.222 Clerk to be county recorder.— (3) The clerk of the circuit court shall record the following kinds of instruments presented to him or her for recording, upon payment of the service charges prescribed by law:
(h) Copies of any instruments originally created and executed using an electronic signature, as defined in s. 695.27, and certified to be a true and correct paper printout by a notary public in accordance with chapter 117, if the county recorder is not prepared to accept electronic documents for recording electronically. 25 CODING:June 28,Criminal Words 2019 stricken Procedure are deletions; Rules words Committee underlined are additions.228 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
Section 19. Subsections (1) and (2) of section 92.50, Florida Statutes, are amended to read:
92.50 Oaths, affidavits, and acknowledgments; who may take or administer; requirements.—
(1) IN THIS STATE.—Oaths, affidavits, and acknowledgments required or authorized under the laws of this state (except oaths to jurors and witnesses in court and such other oaths, affidavits and acknowledgments as are required by law to be taken or administered by or before particular officers) may be taken or administered by or before any judge, clerk, or deputy clerk of any court of record within this state, including federal courts, or by or before any United States commissioner or any notary public within this state. The jurat, or certificate of proof or acknowledgment, shall be authenticated by the signature and official seal of such officer or person taking or administering the same; however, when taken or administered by or before any judge, clerk, or deputy clerk of a court of record, the seal of such court may be affixed as the seal of such officer or person.
(2) IN OTHER STATES, TERRITORIES, AND DISTRICTS OF THE UNITED STATES.—Oaths, affidavits, and acknowledgments required or authorized under the laws of this state, may be taken or administered in any other state, territory, or district of the United States, by or before any judge, clerk or deputy clerk of any court of record, within such state, territory, or district, having a seal, or by or before any notary public or justice of the peace, having a seal, in such state, territory, or district; provided, however, such officer or person is authorized under the laws of such state, territory, or district to take or administer oaths, affidavits and acknowledgments. The jurat, or certificate of proof or acknowledgment, shall be authenticated by the signature and official seal of such officer or person taking or adminis- tering the same; provided, however, when taken or administered by or before any judge, clerk, or deputy clerk of a court of record, the seal of such court may be affixed as the seal of such officer or person.
Section 20. Subsection (1) of section 95.231, Florida Statutes, is amended to read:
95.231 Limitations where deed or will on record.— (1) Five years after the recording of an instrument required to be executed in accordance with s. 689.01; 5 years after the recording of a power of attorney accompanying and used for an instrument required to be executed in accordance with s. 689.01; or 5 years after the probate of a will purporting to convey real property, from which it appears that the person owning the property attempted to convey, affect, or devise it, the instrument, power of attorney, or will shall be held to have its purported effect to convey, affect, or devise, the title to the real property of the person signing the instrument, as if there had been no lack of seal or seals, witness or witnesses, defect in, failure of, or absence of acknowledgment or relinquishment of dower, in the absence of fraud, adverse possession, or 26 CODING:June 28,WordsCriminal 2019 stricken Procedure are deletions; Rules words underlined Committee are additions.229 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
pending litigation. The instrument is admissible in evidence. A power of attorney validated under this subsection shall be valid only for the purpose of effectuating the instrument with which it was recorded.
Section 21. Section 689.01, Florida Statutes, is amended to read:
689.01 How real estate conveyed.—
(1) No estate or interest of freehold, or for a term of more than 1 year, or any uncertain interest of, in or out of any messuages, lands, tenements or hereditaments shall be created, made, granted, transferred or released in any other manner than by instrument in writing, signed in the presence of two subscribing witnesses by the party creating, making, granting, convey- ing, transferring or releasing such estate, interest, or term of more than 1 year, or by the party’s lawfully authorized agent, unless by will and testament, or other testamentary appointment, duly made according to law; and no estate or interest, either of freehold, or of term of more than 1 year, or any uncertain interest of, in, to, or out of any messuages, lands, tenements or hereditaments, shall be assigned or surrendered unless it be by instrument signed in the presence of two subscribing witnesses by the party so assigning or surrendering, or by the party’s lawfully authorized agent, or by the act and operation of law. No seal shall be necessary to give validity to any instrument executed in conformity with this section. Corporations may execute any and all conveyances in accordance with the provisions of this section or ss. 692.01 and 692.02.
(2) For purposes of this chapter:
(a) Any requirement that an instrument be signed in the presence of two subscribing witnesses may be satisfied by witnesses being present and electronically signing by means of audio-video communication technology, as defined in s. 117.201.
(b) The act of witnessing an electronic signature is satisfied if a witness is in the physical presence of the principal or present through audio-video communication technology at the time the principal affixes his or her electronic signature and the witness hears the principal make a statement acknowledging that the principal has signed the electronic record.
(c) The terms used in this subsection have the same meanings as the terms defined in s. 117.201.
(3) All acts of witnessing made or taken in the manner described in subsection (2) are validated and, upon recording, may not be denied to have provided constructive notice based on any alleged failure to have strictly complied with this section or the laws governing notarization of instru- ments, including online notarization. This subsection does not preclude a challenge to the validity or enforceability of an instrument or electronic record based upon fraud, forgery, impersonation, duress, incapacity, undue 27 CODING:June 28,Criminal Words 2019 stricken Procedure are deletions; Rules words Committee underlined are additions.230 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71 influence, minority, illegality, unconscionability, or any other basis not related to the act of witnessing.
Section 22. Section 694.08, Florida Statutes, is amended to read:
694.08 Certain instruments validated, notwithstanding lack of seals or witnesses, or defect in acknowledgment, etc.— (1) Whenever any power of attorney has been executed and delivered, or any conveyance has been executed and delivered to any grantee by the person owning the land therein described, or conveying the same in an official or representative capacity, and has, for a period of 7 years or more been spread upon the records of the county wherein the land therein described has been or was at the time situated, and one or more subsequent conveyances of said land or parts thereof have been made, executed, delivered and recorded by parties claiming under such instrument or instruments, and such power of attorney or conveyance, or the public record thereof, shows upon its face a clear purpose and intent of the person executing the same to authorize the conveyance of said land or to convey the said land, the same shall be taken and held by all the courts of this state, in the absence of any showing of fraud, adverse possession, or pending litigation, to have authorized the conveyance of, or to have conveyed, the fee simple title, or any interest therein, of the person signing such instruments, or the person in behalf of whom the same was conveyed by a person in an official or representative capacity, to the land therein described as effectively as if there had been no defect in, failure of, or absence of the acknowledgment or the certificate of acknowledgment, if acknowledged, or the relinquishment of dower, and as if there had been no lack of the word “as” preceding the title of the person conveying in an official or represen- tative capacity, of any seal or seals, or of any witness or witnesses, and shall likewise be taken and held by all the courts of this state to have been duly recorded so as to be admissible in evidence;
(2) Provided, however, that this section shall not apply to any con- veyance the validity of which shall be contested or have been contested by suit commenced heretofore or within 1 year of the effective date of this law.
Section 23. Section 695.03, Florida Statutes, is amended to read:
695.03 Acknowledgment and proof; validation of certain acknowledg- ments; legalization or authentication before foreign officials.—To entitle any instrument concerning real property to be recorded, the execution must be acknowledged by the party executing it, proved by a subscribing witness to it, or legalized or authenticated in one of the following forms by a civil-law notary or notary public who affixes her or his official seal, before the officers and in the form and manner following:
(1) WITHIN THIS STATE.—An acknowledgment or a proof may be taken, administered, or made within this state by or may be made before a judge, clerk, or deputy clerk of any court; a United States commissioner or 28 CODING:June 28,WordsCriminal 2019 stricken Procedure are deletions; Rules words underlined Committee are additions.231 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
magistrate; or any a notary public or civil-law notary of this state, and the certificate of acknowledgment or proof must be under the seal of the court or officer, as the case may be. All affidavits and acknowledgments heretofore made or taken in this manner are hereby validated.
(2) OUTSIDE WITHOUT THIS STATE BUT WITHIN THE UNITED STATES.—An acknowledgment or a proof taken, administered, or made outside out of this state but within the United States may be taken, administered, or made by or before a civil-law notary of this state or a commissioner of deeds appointed by the Governor of this state; a judge or clerk of any court of the United States or of any state, territory, or district; by or before a United States commissioner or magistrate; or by or before any a notary public, justice of the peace, master in chancery, or registrar or recorder of deeds of any state, territory, or district having a seal, and the certificate of acknowledgment or proof must be under the seal of the court or officer, as the case may be. If the acknowledgment or proof is taken, administered, or made by or before a notary public who does not affix a seal, it is sufficient for the notary public to type, print, or write by hand on the instrument, “I am a Notary Public of the State of …(state)…, and my commission expires on …(date)….” (3) OUTSIDE OF THE UNITED STATES OR WITHIN FOREIGN COUNTRIES.—An If the acknowledgment, an affidavit, an oath, a legalization, an authentication, or a proof taken, administered, or made outside the United States or is made in a foreign country, it may be taken, administered, or made by or before a commissioner of deeds appointed by the Governor of this state to act in such country; before a notary public of such foreign country or a civil-law notary of this state or of such foreign country who has an official seal; before an ambassador, envoy extraordinary, minister plenipotentiary, minister, commissioner, charge d’affaires, consul general, consul, vice consul, consular agent, or other diplomatic or consular officer of the United States appointed to reside in such country; or before a military or naval officer authorized by 10 U.S.C. s. 1044a the Laws or Articles of War of the United States to perform the duties of notary public, and the certificate of acknowledgment, legalization, authentication, or proof must be under the seal of the officer. A certificate legalizing or authenticat- ing the signature of a person executing an instrument concerning real property and to which a civil-law notary or notary public of that country has affixed her or his official seal is sufficient as an acknowledgment. For the purposes of this section, the term “civil-law notary” means a civil-law notary as defined in chapter 118 or an official of a foreign country who has an official seal and who is authorized to make legal or lawful the execution of any document in that jurisdiction, in which jurisdiction the affixing of her or his official seal is deemed proof of the execution of the document or deed in full compliance with the laws of that jurisdiction.
(4) COMPLIANCE AND VALIDATION.—The affixing of the official seal or the electronic equivalent thereof under s. 117.021 or other applicable law, including part II of chapter 117, conclusively establishes that the acknowl- edgment or proof was taken, administered, or made in full compliance with 29 CODING:June 28,Criminal Words 2019 stricken Procedure are deletions; Rules words Committee underlined are additions.232 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71 the laws of this state or, as applicable, the laws of the other state, or of the foreign country governing notarial acts. All affidavits, oaths, acknowl- edgments, legalizations, authentications, or proofs taken, administered, or made in any manner as set forth in subsections (1), (2), and (3) are validated and upon recording may not be denied to have provided constructive notice based on any alleged failure to have strictly complied with this section, as currently or previously in effect, or the laws governing notarization of instruments. This subsection does not preclude a challenge to the validity or enforceability of an instrument or electronic record based upon fraud, forgery, impersonation, duress, incapacity, undue influence, minority, illegality, unconscionability, or any other basis not related to the notarial act or constructive notice provided by recording. All affidavits, legalizations, authentications, and acknowledgments here- tofore made or taken in the manner set forth above are hereby validated.
Section 24. Section 695.04, Florida Statutes, is amended to read:
695.04 Requirements of certificate.—The certificate of the officer before whom the acknowledgment or proof is taken, except for a certificate legalizing or authenticating the signature of a person executing an instrument concerning real property pursuant to s. 695.03(3), shall contain and set forth substantially the matter required to be done or proved to make such acknowledgment or proof effectual as set forth in s. 117.05.
Section 25. Section 695.25, Florida Statutes, is amended to read:
695.25 Short form of acknowledgment.—The forms of acknowledgment set forth in this section may be used, and are sufficient for their respective purposes, under any law of this state. The forms shall be known as “Statutory Short Forms of Acknowledgment” and may be referred to by that name. The authorization of the forms in this section does not preclude the use of other forms.
(1) For an individual acting in his or her own right:
STATE OF ......
COUNTY OF ...... The foregoing instrument was acknowledged before me by means of ☐ physical presence or ☐ online notarization, this …(date)… by …(name of person acknowledging)…, who is personally known to me or who has produced …(type of identification)… as identification.
…(Signature of person taking acknowledgment)…
…(Name typed, printed or stamped)…
…(Title or rank)… 30 CODING:June 28,WordsCriminal 2019 stricken Procedure are deletions; Rules words underlined Committee are additions.233 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
…(Serial number, if any)…
(2) For a corporation:
STATE OF ......
COUNTY OF ......
The foregoing instrument was acknowledged before me by means of ☐ physical presence or ☐ online notarization, this …(date)… by …(name of officer or agent, title of officer or agent)… of …(name of corporation acknowledging)…, a …(state or place of incorporation)… corporation, on behalf of the corporation. He/she is personally known to me or has produced …(type of identification)… as identification.
…(Signature of person taking acknowledgment)…
…(Name typed, printed or stamped)…
…(Title or rank)…
…(Serial number, if any)…
(3) For a limited liability company:
STATE OF......
COUNTY OF ......
The foregoing instrument was acknowledged before me by means of ☐ physical presence or ☐ online notarization, this …(date)… by …(name of member, manager, officer or agent, title of member, manager, officer or agent)…, of …(name of company acknowledging)…, a …(state or place of formation)… limited liability company, on behalf of the company, who is personally known to me or has produced …(type of identification)… as identification.
…(Signature of person taking acknowledgment)…
…(Name typed, printed or stamped)…
…(Title or rank)…
…(Serial number, if any)…
(4)(3) For a partnership: 31 CODING:June 28,Criminal Words 2019 stricken Procedure are deletions; Rules words Committee underlined are additions.234 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
STATE OF ......
COUNTY OF ......
The foregoing instrument was acknowledged before me by means of ☐ physical presence or ☐ online notarization, this …(date)… by …(name of acknowledging partner or agent)…, partner (or agent) on behalf of …(name of partnership)…, a partnership. He/she is personally known to me or has produced …(type of identification)… as identification.
…(Signature of person taking acknowledgment)…
…(Name typed, printed or stamped)…
…(Title or rank)…
…(Serial number, if any)…
(5)(4) For an individual acting as principal by an attorney in fact:
STATE OF ......
COUNTY OF ......
The foregoing instrument was acknowledged before me by means of ☐ physical presence or ☐ online notarization, this …(date)… by …(name of attorney in fact)… as attorney in fact, who is personally known to me or who has produced …(type of identification)… as identification on behalf of … (name of principal)….
…(Signature of person taking acknowledgment)…
…(Name typed, printed or stamped)…
…(Title or rank)…
…(Serial number, if any)…
(6)(5) By any public officer, trustee, or personal representative:
STATE OF ......
COUNTY OF ......
The foregoing instrument was acknowledged before me by means of ☐ physical presence or ☐ online notarization, this …(date)… by …(name and 32 CODING:June 28,WordsCriminal 2019 stricken Procedure are deletions; Rules words underlined Committee are additions.235 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
title of position)…, who is personally known to me or who has produced … (type of identification)… as identification.
…(Signature of person taking acknowledgment)…
…(Name typed, printed or stamped)…
…(Title or rank)…
…(Serial number, if any)….
Section 26. Section 695.28, Florida Statutes, is amended to read:
695.28 Validity of recorded electronic documents.—
(1) A document that is otherwise entitled to be recorded and that was or is submitted to the clerk of the court or county recorder by electronic or other means and accepted for recordation is deemed validly recorded and provides notice to all persons notwithstanding:
(a) That the document was received and accepted for recordation before the Department of State adopted standards implementing s. 695.27; or
(b) Any defects in, deviations from, or the inability to demonstrate strict compliance with any statute, rule, or procedure relating to electronic signatures, electronic witnesses, electronic notarization, or online notariza- tion, or for submitting or recording to submit or record an electronic document in effect at the time the electronic document was executed or was submitted for recording;
(c) That the document was signed, witnessed, or notarized electronically, and that the document was notarized by an online notary public outside the physical presence of the signer through audio-video communication technol- ogy, as defined in s. 117.201, or that witnessing may have been done outside the physical presence of the notary public or principal through such audio- visual communication; or
(d) That the document recorded was a certified printout of a document to which one or more electronic signatures have been affixed.
(2) This section does not alter the duty of the clerk or recorder to comply with s. 28.222, s. 695.27, or any rules adopted pursuant to those sections that section.
(3) This section does not preclude a challenge to the validity or enforceability of an instrument or electronic record based upon fraud, forgery, impersonation, duress, incapacity, undue influence, minority, illegality, unconscionability, or any other basis not in the nature of those matters described in subsection (1). 33 CODING:June 28,Criminal Words 2019 stricken Procedure are deletions; Rules words Committee underlined are additions.236 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
Section 27. Subsections (3) and (4) of section 709.2119, Florida Statutes, are amended to read:
709.2119 Acceptance of and reliance upon power of attorney.—
(3) A third person who is asked to accept a power of attorney that appears to be executed in accordance with s. 709.2105 may in good faith request, and rely upon, without further investigation:
(a) A certified English translation of the power of attorney if the power of attorney contains, in whole or in part, language other than English;
(b) An opinion of counsel as to any matter of law concerning the power of attorney if the third person making the request provides in a writing or other record the reason for the request; or
(c) The affidavit described in subsection (2); or
(d) The electronic journal or record made by the notary public pursuant to the laws of the state in which the notary public is appointed if the power of attorney is witnessed or notarized remotely through the use of online witnesses or notarization.
(4) An English translation, or an opinion of counsel, or an electronic journal or record requested under this section must be provided at the principal’s expense unless the request is made after the time specified in s. 709.2120(1) for acceptance or rejection of the power of attorney.
Section 28. Subsection (4) of section 709.2120, Florida Statutes, is amended to read:
709.2120 Rejecting power of attorney.—
(4) A third person is not required to accept a power of attorney if:
(a) The third person is not otherwise required to engage in a transaction with the principal in the same circumstances;
(b) The third person has knowledge of the termination or suspension of the agent’s authority or of the power of attorney before exercising the power;
(c) A timely request by the third person for an affidavit, English translation, or opinion of counsel, or electronic journal or record under s. 709.2119 s. 709.2119(4) is refused by the agent;
(d) The power of attorney is witnessed or notarized remotely through the use of online witnesses or notarization, and either the agent is unable to produce the electronic journal or record, or the notary public did not maintain an electronic journal or record of the notarization; 34 CODING:June 28,WordsCriminal 2019 stricken Procedure are deletions; Rules words underlined Committee are additions.237 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
(e)(d) Except as provided in paragraph (b), the third person believes in good faith that the power is not valid or that the agent does not have authority to perform the act requested; or
(f)(e) The third person makes, or has knowledge that another person has made, a report to the local adult protective services office stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person acting for or with the agent.
Section 29. Subsection (6) of section 709.2202, Florida Statutes, is renumbered as subsection (7), and a new subsection (6) is added to that section to read:
709.2202 Authority that requires separate signed enumeration.— (6) Notwithstanding subsection (1) and s. 709.2106(3), a power of attorney, executed by a principal domiciled in this state at the time of execution, that is witnessed remotely pursuant to s. 117.285 or other applicable law by a witness who is not in the physical presence of the principal is not effective to grant authority to an agent to take any of the actions enumerated in subsection (1).
Section 30. Subsection (40) of section 731.201, Florida Statutes, is amended to read:
731.201 General definitions.—Subject to additional definitions in sub- sequent chapters that are applicable to specific chapters or parts, and unless the context otherwise requires, in this code, in s. 409.9101, and in chapters 736, 738, 739, and 744, the term:
(40) “Will” means a testamentary an instrument, including a codicil, executed by a person in the manner prescribed by this code, which disposes of the person’s property on or after his or her death and includes an instrument which merely appoints a personal representative or guardian or revokes or revises another will. The term includes an electronic will as defined in s. 732.521.
Section 31. Section 732.506, Florida Statutes, is amended to read:
732.506 Revocation by act.—A will or codicil, other than an electronic will, is revoked by the testator, or some other person in the testator’s presence and at the testator’s direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation. An electronic will or codicil is revoked by the testator, or some other person in the testator’s presence and at the testator’s direction, by deleting, canceling, rendering unreadable, or obliterating the electronic will or codicil, with the intent, and for the purpose, of revocation, as proved by clear and convincing evidence.
Section 32. Section 732.521, Florida Statutes, is created to read: 35 CODING:June 28,Criminal Words 2019 stricken Procedure are deletions; Rules words Committee underlined are additions.238 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
732.521 Definitions.—As used in ss. 732.521-732.525, the term:
(1) “Audio-video communication technology” has the same meaning as provided in s. 117.201.
(2) “Electronic record” has the same meaning as provided in s. 668.50.
(3) “Electronic signature” means an electronic mark visibly manifested in a record as a signature and executed or adopted by a person with the intent to sign the record.
(4) “Electronic will” means a testamentary instrument, including a codicil, executed with an electronic signature by a person in the manner prescribed by this code, which disposes of the person’s property on or after his or her death and includes an instrument which merely appoints a personal representative or guardian or revokes or revises another will.
(5) “Online notarization” has the same meaning as provided in s. 117.201.
(6) “Online notary public” has the same meaning as provided in s. 117.201.
(7) “Qualified custodian” means a person who meets the requirements of s. 732.525(1).
(8) “Secure system” means a system that satisfies the requirements of a secure repository qualified to retain electronic journals of online notaries public in accordance with s. 117.245 and any rules established under part II of chapter 117.
Section 33. Effective July 1, 2020, section 732.522, Florida Statutes, is created to read:
732.522 Method and place of execution.—For purposes of the execution or filing of an electronic will, the acknowledgment of an electronic will by the testator and the affidavits of witnesses under s. 732.503, or any other instrument under the Florida Probate Code:
(1) Any requirement that an instrument be signed may be satisfied by an electronic signature.
(2) Any requirement that individuals sign an instrument in the presence of one another may be satisfied by witnesses being present and electronically signing by means of audio-video communication technology that meets the requirements of part II of chapter 117 and any rules adopted thereunder, if: (a) The individuals are supervised by a notary public in accordance with s. 117.285;
(b) The individuals are authenticated and signing as part of an online notarization session in accordance with s. 117.265; 36 CODING:June 28,WordsCriminal 2019 stricken Procedure are deletions; Rules words underlined Committee are additions.239 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
(c) The witness hears the signer make a statement acknowledging that the signer has signed the electronic record; and
(d) The signing and witnessing of the instrument complies with the requirements of s. 117.285.
(3) Except as otherwise provided in this part, all questions as to the force, effect, validity, and interpretation of an electronic will which comply with this section must be determined in the same manner as in the case of a will executed in accordance with s. 732.502.
(4) An instrument that is signed electronically is deemed to be executed in this state if the instrument states that the person creating the instrument intends to execute and understands that he or she is executing the instrument in, and pursuant to the laws of, this state.
Section 34. Section 732.523, Florida Statutes, is created to read:
732.523 Self-proof of electronic will.—An electronic will is self-proved if: (1) The acknowledgment of the electronic will by the testator and the affidavits of the witnesses are made in accordance with s. 732.503 and are part of the electronic record containing the electronic will, or are attached to, or are logically associated with, the electronic will;
(2) The electronic will designates a qualified custodian;
(3) The electronic record that contains the electronic will is held in the custody of a qualified custodian at all times before being offered to the court for probate; and
(4) The qualified custodian who has custody of the electronic will at the time of the testator’s death certifies under oath that, to the best knowledge of the qualified custodian, the electronic record that contains the electronic will was at all times before being offered to the court in the custody of a qualified custodian in compliance with s. 732.524 and that the electronic will has not been altered in any way since the date of its execution.
Section 35. Section 732.524, Florida Statutes, is created to read:
732.524 Qualified custodians.— (1) To serve as a qualified custodian of an electronic will, a person must be:
(a) Domiciled in and a resident of this state; or
(b) Incorporated, organized, or have its principal place of business in this state.
(2) A qualified custodian shall: 37 CODING:June 28,Criminal Words 2019 stricken Procedure are deletions; Rules words Committee underlined are additions.240 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
(a) In the course of maintaining custody of electronic wills, regularly employ a secure system and store in such secure system electronic records containing:
1. Electronic wills;
2. Records attached to or logically associated with electronic wills; and 3. Acknowledgments of the electronic wills by testators, affidavits of the witnesses, and the records described in s. 117.245(1) and (2) which pertain to the online notarization.
(b) Furnish for any court hearing involving an electronic will that is currently or was previously stored by the qualified custodian any informa- tion requested by the court pertaining to the qualified custodian’s qualifications, policies, and practices related to the creation, sending, communication, receipt, maintenance, storage, and production of electronic wills.
(c) Provide access to or information concerning the electronic will, or the electronic record containing the electronic will, only: 1. To the testator;
2. To persons authorized by the testator in the electronic will or in written instructions signed by the testator with the formalities required for the execution of a will in this state;
3. After the death of the testator, to the testator’s nominated personal representative; or
4. At any time, as directed by a court of competent jurisdiction.
(3) The qualified custodian of the electronic record of an electronic will may elect to destroy such record, including any of the documentation required to be created and stored under paragraph (2)(a), at any time after the earlier of the fifth anniversary of the conclusion of the administration of the estate of the testator or 20 years after the death of the testator.
(4) A qualified custodian who at any time maintains custody of the electronic record of an electronic will may elect to cease serving in such capacity by:
(a) Delivering the electronic will or the electronic record containing the electronic will to the testator, if then living, or, after the death of the testator, by filing the will with the court in accordance with s. 732.901; and (b) If the outgoing qualified custodian intends to designate a successor qualified custodian, by doing the following:
1. Providing written notice to the testator of the name, address, and qualifications of the proposed successor qualified custodian. The testator 38 CODING:June 28,WordsCriminal 2019 stricken Procedure are deletions; Rules words underlined Committee are additions.241 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
must provide written consent before the electronic record, including the electronic will, is delivered to a successor qualified custodian;
2. Delivering the electronic record containing the electronic will to the successor qualified custodian; and
3. Delivering to the successor qualified custodian an affidavit of the outgoing qualified custodian stating that:
a. The outgoing qualified custodian is eligible to act as a qualified custodian in this state;
b. The outgoing qualified custodian is the qualified custodian designated by the testator in the electronic will or appointed to act in such capacity under this paragraph;
c. The electronic will has at all times been in the custody of one or more qualified custodians in compliance with this section since the time the electronic record was created, and identifying such qualified custodians; and
d. To the best of the outgoing qualified custodian’s knowledge, the electronic will has not been altered since the time it was created.
For purposes of making this affidavit, the outgoing qualified custodian may rely conclusively on any affidavits delivered by a predecessor qualified custodian in connection with its designation or appointment as qualified custodian; however, all such affidavits must be delivered to the successor qualified custodian.
(5) Upon the request of the testator which is made in writing signed with the formalities required for the execution of a will in this state, a qualified custodian who at any time maintains custody of the electronic record of the testator’s electronic will must cease serving in such capacity and must deliver to a successor qualified custodian designated in writing by the testator the electronic record containing the electronic will and the affidavit required in subparagraph (4)(b)3.
(6) A qualified custodian may not succeed to office as a qualified custodian of an electronic will unless he or she agrees in writing to serve in such capacity.
(7) If a qualified custodian is an entity, an affidavit, or an appearance by the testator in the presence of a duly authorized officer or agent of such entity, acting in his or her own capacity as such, shall constitute an affidavit, or an appearance by the testator in the presence of the qualified custodian.
(8) A qualified custodian must provide a paper copy of an electronic will and the electronic record containing the electronic will to the testator immediately upon request. For the first request, the testator may not be charged a fee for being provided with these documents. 39 CODING:June 28,Criminal Words 2019 stricken Procedure are deletions; Rules words Committee underlined are additions.242 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
(9) The qualified custodian shall be liable for any damages caused by the negligent loss or destruction of the electronic record, including the electronic will, while it is in the possession of the qualified custodian. A qualified custodian may not limit liability for such damages.
(10) A qualified custodian may not terminate or suspend access to, or downloads of, the electronic will by the testator, provided that a qualified custodian may charge a fee for providing such access and downloads.
(11) Upon receiving information that the testator is dead, a qualified custodian must deposit the electronic will with the court in accordance with s. 732.901. A qualified custodian may not charge a fee for depositing the electronic will with the clerk, provided the affidavit is made in accordance with s. 732.503, or furnishing in writing any information requested by a court under paragraph (2)(b).
(12) Except as provided in this act, a qualified custodian must at all times keep information provided by the testator confidential and may not disclose such information to any third party.
(13) A contractual venue provision between a qualified custodian and a testator is not valid or enforceable to the extent that it requires a specific jurisdiction or venue for any proceeding relating to the probate of an estate or the contest of a will.
Section 36. Section 732.525, Florida Statutes, is created to read:
732.525 Liability coverage; receivership of qualified custodians.—
(1) A qualified custodian shall:
(a) Post and maintain a blanket surety bond of at least $250,000 to secure the faithful performance of all duties and obligations required under this part. The bond must be made payable to the Governor and his or her successors in office for the benefit of all persons who store electronic records with a qualified custodian and their estates, beneficiaries, successors, and heirs, and be conditioned on the faithful performance of all duties and obligations under this chapter. The terms of the bond must cover the acts or omissions of the qualified custodian and each agent or employee of the qualified custodian; or
(b) Maintain a liability insurance policy that covers any losses sustained by any person who stores electronic records with a qualified custodian and their estates, beneficiaries, successors, and heirs which are caused by errors or omissions by the qualified custodian and each agent or employee of the qualified custodian. The policy must cover losses of at least $250,000 in the aggregate.
(2) The Attorney General may petition a court of competent jurisdiction for the appointment of a receiver to manage the electronic records of a 40 CODING:June 28,WordsCriminal 2019 stricken Procedure are deletions; Rules words underlined Committee are additions.243 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
qualified custodian for proper delivery and safekeeping if any of the following conditions exist:
(a) The qualified custodian is ceasing operation;
(b) The qualified custodian intends to close the facility and adequate arrangements have not been made for proper delivery of the electronic records in accordance with this part;
(c) The Attorney General determines that conditions exist which present a danger that electronic records will be lost or misappropriated; or
(d) The qualified custodian fails to maintain and post a surety bond or maintain insurance as required in this section.
Section 37. Section 732.526, Florida Statutes, is created to read:
732.526 Probate.— (1) An electronic will that is filed electronically with the clerk of the court through the Florida Courts E-Filing Portal is deemed to have been deposited with the clerk as an original of the electronic will.
(2) A paper copy of an electronic will which is certified by a notary public to be a true and correct copy of the electronic will may be offered for and admitted to probate and shall constitute an original of the electronic will.
Section 38. Subsection (1) of section 733.201, Florida Statutes, is amended to read:
733.201 Proof of wills.— (1) Self-proved wills executed in accordance with this code may be admitted to probate without further proof. However, a purportedly self- proved electronic will may be admitted to probate only in the manners prescribed in subsections (2) and (3) if the execution of such electronic will, or the acknowledgment by the testator and the affidavits of the witnesses, involves an online notarization in which there was a substantial failure to comply with the procedures set forth in s. 117.265.
Section 39. Section 740.11, Florida Statutes, is created to read:
740.11 Relation to wills.—No act taken pursuant to this chapter is valid to affect the obligation of a person to deposit a will of a decedent as required under s. 732.901.
Section 40. Except as otherwise expressly provided in this act, and except for this section, which shall take effect upon becoming a law, this act shall take effect January 1, 2020.
Approved by the Governor June 7, 2019. 41 CODING:June 28,Criminal Words 2019 stricken Procedure are deletions; Rules words Committee underlined are additions.244 Ch. 2019-71 LAWS OF FLORIDA Ch. 2019-71
Filed in Office Secretary of State June 7, 2019.
42 CODING:June 28,WordsCriminal 2019 stricken Procedure are deletions; Rules words underlined Committee are additions.245 From: Laird A. Lile, Esq.
I’ll call you re the below.
Laird A. Lile, Esq. Laird A. Lile, PLLC
From: Laird A. Lile, Esq. Sent: Wednesday, May 22, 2019 3:46 PM To: '[email protected]'
See below and attached.
Laird A. Lile, Esq. Laird A. Lile, PLLC
From: Laird A. Lile, Esq. Sent: Sunday, May 19, 2019 12:06 PM To: Laird A. Lile, Esq.
My comments are directed to page 30(17) of the board packet which sets forth proposed changes to Rule 2.530.
The first comment pertains to the proposed change to subsection (a), which is as follows:
(a) Definition. Communication equipment means a conference telephone or other electronic devicecomparable audio equipment that permits all those appearing or participating to hear and speak to each other, provided that all conversation of all parties is audible to all persons present. Communication equipment also means video conference or comparable audiovisual equipment.
The structure of this provision is rather awkward. The first sentence has historically provided meaning to the term “communication equipment.” Historically that definition has referred exclusively to audio equipment. The proposal would seem to now include video equipment. However, the structure of the proposal adds the video equipment as a separate sentence. In doing so, the requirement of “all of those appearing or participating” does not apply to video equipment. That seems inappropriate. In addition, the proposal carries forward use of inconsent terms such as “parties” and “persons” and outdated terms such as “conference telephone.” Accordingly, I suggest restructuring the proposal to something along the following lines:
June 28, 2019 Criminal Procedure Rules Committee 246 (a) Definition. Communication equipment means a telephone or other device that permits each person participating to communicate (i) only by voice with all communications being audible to each other person participating or (ii) by voice and visually with all communications being audible to, and seen by, each other person participating.
The next comment pertains to the proposed change to subdivision (3), which is as follows:
(3) Oath. Testimony may be taken through audio communication equipment only if a notary public or other person authorized to administer oaths in the witness’s jurisdiction is physically present with the witness and administers the oath consistent with the laws of the jurisdiction. If testimony is provided via video conference or comparable audiovisual equipment, and the parties agree, the witness may also be sworn remotely using such video conference or comparable audiovisual equipment by a person who is qualified to administer oaths in the witness’s jurisdiction and who administers the oath consistent with the laws of that jurisdiction.
The structure of this proposal, by adding a separate sentence for video, fails to utilize the definition of communication equipment provided earlier in the rule. In addition, the Florida legislature changed the law regarding remote notarization. See CS/CS/HB 409, which has not yet been signed into law as of May 19, 2019. The proposal does not seem to correlate to the changes to Chapter 117, assuming the referenced bill becomes law. In any case, the provision is much longer than necessary if the only purpose is to be certain that an oath has been taken by the witness.
(3) Oath. Testimony may be taken through communication equipment only after an oath has been administered to the witness consistent with Florida law, including Chapter 117, Florida Statutes.
Laird A. Lile, Esq. Laird A. Lile, PLLC
3033 Riviera Drive, Suite 104 Naples, Florida 34103 239.649.7778 [email protected] www.lairdalile.com
Proposal from Committees
(b) Definition. Communication equipment means a conference telephone or other electronic devicecomparable audio equipment that permits all those appearing or participating to hear and speak to each other, provided that all conversation of all parties is audible to all persons present. Communication equipment also means video conference or comparable audiovisual equipment.
Suggestion from Lile
June 28, 2019 Criminal Procedure Rules Committee 247 (a) Definition. Communication equipment means a conference telephone or other electronic device that permits each person all those appearing or participating to communicate (i) only by voice hear and speak to each otherwith, provided that all conversation communications of all parties is being audible to each other person participatingall persons present or (ii) by voice and visually with all communications being audible to, and seen by, each other person participating.
Proposal from Committees
(3) Oath. Testimony may be taken through audio communication equipment only if a notary public or other person authorized to administer oaths in the witness’s jurisdiction is physically present with the witness and administers the oath consistent with the laws of the jurisdiction. If testimony is provided via video conference or comparable audiovisual equipment, and the parties agree, the witness may also be sworn remotely using such video conference or comparable audiovisual equipment by a person who is qualified to administer oaths in the witness’s jurisdiction and who administers the oath consistent with the laws of that jurisdiction.
Suggestion from Lile
(3) Oath. Testimony may be taken through audio communication equipment only after an if a notary public or other person authorized to administer oaths has been administered to the witness consistent with Florida law, including Chapter 117, Florida Statutes.in the witness’s jurisdiction is physically present with the witness and administers the oath consistent with the laws of the jurisdiction. If testimony is provided via video conference or comparable audiovisual equipment, and the parties agree, the witness may also be sworn remotely using such video conference or comparable audiovisual equipment by a person who is qualified to administer oaths in the witness’s jurisdiction and who administers the oath consistent with the laws of that jurisdiction.
June 28, 2019 Criminal Procedure Rules Committee 248 $upreme @ourt ot:FloriDs Office of the Clelk 500 South Duval Street l'allahassee. Florida 32399 - | 927
JoH\ n. li)\,!AsrNo Pr to:'r: NuvBr;n: (850) 488-0 I 25 Cr-l.Rr lvww. fl oridasupremecoun.org M^RXCr \YloN CiltFrt, l)rPt. rY Cr-riRX Jt :t.t-,\ IlRt.tir)tNc May 23, 2019 S'r'Al.F A n oRl.l,\'
Ms. Michelle R. Suskauer President, The Florida Bar Diamond Kaplan & Rothstein, P.A. Suite P300 515 North Flagler Drive West Palm Beach. FL 33401-4326
Mr. Joshua E. Doyle Executive Director The Florida Bar 651 East Jefferson Street Tallahassee, FL 32399-6584
Re: 2019 Legislation Potentially Affecting Court Rules and Jury Instructions
Dear Ms. Suskauer and Mr. Dovle:
This letter addresses legislation passed during the 2019 Regular Legislative Session that may necessitate changes to court rules. Staff of the Office of the State Courts Administrator (OSCA) prepared the enclosed table, which identifies as specifically as possible court rules potentially affected by recently enacted legislation and identifies the effective date of each measure. If a measure has been approved by the Governor or become law without his signature, the table includes the assigned chapter law.
June 28, 2019 Criminal Procedure Rules Committee 249 Page:2
Consideration of legislation that may require rule changes should not be limited to the measures included on the table. The table simply is intended to assist the rules committees in their independent review of recently enacted legislation as part of each committeeos regular assessment and evaluation of the body of rules under its jurisdiction. Each committee should continue with its independent review.
As in the past, the Supreme Court requests that the rules committees, in drafting rules in response to new laws, not simply restate legislative language as a rule, but instead consider whether a rule is needed to implement substantive-law provisions. If legislation contains procedures, rules committees should not feel constrained automatically to propose rule language that mirrors procedures suggested by the Legislature. Expedited review of this legislation by the appropriate rules committees, under their fast-track procedures, will help ensure that the Court adopts rules before the effective date of a new law, if possible.
The enclosed OSCA-prepared table also indicates where legislation may necessitate revisions to standard jury instructions. Consequently, I am providing copies of this letter and the table to the chairs of the respective Court committees on standard jury instructions, for reference by those committees in similarly evaluating the need for and proposing changes to the instructions.
Please do not hesitate to contact me if you have questions.
Most cordially,
John'A. Tomasino
JAT/snb
Enclosure
cc: The Honorable Charles T. Canady, Chief Justice John M. Stewart, President-Elect, The Florida Bar Ms. Laura Whitmore, Chair, Standard Jury Instructions Comrnirtee (Civil) The Honorable Paul L. Huey, Chair, Standard Jury lnskuctions Committee (Contract and Business Cases)
June 28, 2019 Criminal Procedure Rules Committee 250 Page:3
The Honorable F. Rand Wallis, Chair, Standard Jury Instructions Committee (Criminal) Courtney Rebecca Brewer, Chair, Appellate Court Rules Committee Scott Michael Dimond, Chair, Civil Procedure Rules Committee Patricia M. Dodson, Chair, Code and Rules of Evidence Committee Sheila Ann Loizos, Chair, Criminal Procedure Rules Committee Maria Liliana Obradovich, Chair, Family Law Rules Committee Theodore Stanley Kypreos, Chair, Florida Probate Rules Commiftee Eduardo I. Sanchez, Chair, Judicial Administration Rules Committee David Neal Silverstein, Chair, Juvenile Court Rules Committee Christina M. Magee, Small Claims Rules Committee Anne Marie Gennusa, Chair, Traffrc Court Rules Committee Kellye A. Shoemaker, Chair, Workers' Compensation Rules Advisory Committee Gypsy Bailey, General Counsel, The Florida Bar Terry L. Hill, Director, Programs Division, The Florida Bar Deborah J. Meyer, Director, Central Staff, Supreme Court of Florida Elisabeth H. Kiel, State Courts Administrator C. Erica White, General Counsel, OSCA Bart Schneider, Senior Attorney II, OSCA Alysson Bradley, Senior Attomey II, OSCA Melissa Hamilton, Senior Attorney II, OSCA Sarah Naf Biehl, Chief, Legislative Affairs, OSCA
June 28, 2019 Criminal Procedure Rules Committee 251 2OI9 BILLS POTENTIALLY AF'FECTING COURT RULES/JURY INSTRUCTIONS May 23,2019
Rules of Appellate Procedure HB 337 The Rules of Civil Procedure, Julv l" 2019 Appellate Procedure, and Judicial Administration may need to be reviewed and revised to ensure the rules accommodate the new statutory
Rules of Civil Procedure HB 337 The Rules of Civil Procedure, July 1,2019 Appellate Procedure, and Judicial Administration may need to be reviewed and revised to ensure the rules accommodate the new statutory
Uniform The Rules of Civil Procedure may July 1 ,2019 Interstate need to be reviewed to ensure Depositions and conformity with the new statute. Chapter No. 2019-013, Discoverv Act Laws of Fla. Rules of Criminal Procedure SB 168 Federal New rules of criminal procedure may July 1 ,2019 Immigration need to be created regarding the 7-day Enforcement reduction in sentence and the new requirements for the judge to ensure the court record contains certain immi eration in formation. Rules of Judicial Adminishstiea HB 337 The Rules of Civil Procedure, July 1,2019 Appellate Procedure, and Judicial Administration may need to be reviewed and revised to ensure the rules accommodate the new statutorv procedures.
June 28, 2019 Criminal Procedure Rules Committee 252 Rules of Juvenile Procedure HB 1209 Caregivers for Florida Rules of Juvenile Procedure July I ,2019 Children in Out 8.225,8.415, and any other rule of-Home Care governing notice to foster parents may need to be amended. SB I24 Dependent The Florida Rules of Juvenile Upon becorning law Children Procedure may need to be arnended to (4/26/te) conform to changes made by the bill. Chapter No. 2019-010, Laws of Fla. SB 262 Child Welfare Florida Rules of Juvenile Procedure October 1,2019 8.24A, 8.305, 8.330, 9.345, 9.400, 8.401, 8.410, 9.420, 9.425, 9.430, and 8.525 mav need to be amended.
Compiled by the Office of the State Courts Administrator, Office of Legislative Affairs
June 28, 2019 Criminal Procedure Rules Committee 253 ENROLLED 2019 Legislature CS for CS for CS for SB 168, 2nd Engrossed
2019168er 1 2 An act relating to federal immigration enforcement; 3 creating chapter 908, F.S., relating to federal 4 immigration enforcement; providing legislative 5 findings and intent; providing definitions; 6 prohibiting sanctuary policies; requiring state 7 entities, local governmental entities, and law 8 enforcement agencies to use best efforts to support 9 the enforcement of federal immigration law; 10 prohibiting restrictions by the entities and agencies 11 on taking certain actions with respect to information 12 regarding a person’s immigration status; providing 13 requirements concerning certain criminal defendants 14 subject to immigration detainers or otherwise subject 15 to transfer to federal custody; authorizing a law 16 enforcement agency to transport an alien unlawfully 17 present in the United States under certain 18 circumstances; providing an exception to reporting 19 requirements for crime victims or witnesses; requiring 20 recordkeeping relating to crime victim and witness 21 cooperation in certain investigations; providing 22 applicability; specifying duties concerning 23 immigration detainers; requiring county correctional 24 facilities to enter agreements for payments for 25 complying with immigration detainers; providing for 26 enforcement; providing for declaratory or injunctive 27 relief; requiring a court to enjoin unlawful sanctuary 28 policies; requiring written findings of fact under 29 certain circumstances; providing for applicability to
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2019168er 30 certain education records; prohibiting discrimination 31 on specified grounds; providing for implementation; 32 requiring repeal of existing sanctuary policies within 33 a specified period; providing effective dates. 34 35 Be It Enacted by the Legislature of the State of Florida: 36 37 Section 1. Chapter 908, Florida Statutes, consisting of 38 sections 908.101-908.109, is created to read: 39 CHAPTER 908 40 FEDERAL IMMIGRATION ENFORCEMENT 41 908.101 Legislative findings and intent.—The Legislature 42 finds that it is an important state interest to cooperate and 43 assist the federal government in the enforcement of federal 44 immigration laws within this state. 45 908.102 Definitions.—As used in this chapter, the term: 46 (1) “Federal immigration agency” means the United States 47 Department of Justice and the United States Department of 48 Homeland Security, a division within such an agency, including 49 United States Immigration and Customs Enforcement and United 50 States Customs and Border Protection, any successor agency, and 51 any other federal agency charged with the enforcement of 52 immigration law. 53 (2) “Immigration detainer” means a facially sufficient 54 written or electronic request issued by a federal immigration 55 agency using that agency’s official form to request that another 56 law enforcement agency detain a person based on probable cause 57 to believe that the person to be detained is a removable alien 58 under federal immigration law, including detainers issued
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2019168er 59 pursuant to 8 U.S.C. ss. 1226 and 1357 along with a warrant 60 described in paragraph (c). For purposes of this subsection, an 61 immigration detainer is deemed facially sufficient if: 62 (a) The federal immigration agency’s official form is 63 complete and indicates on its face that the federal immigration 64 official has probable cause to believe that the person to be 65 detained is a removable alien under federal immigration law; or 66 (b) The federal immigration agency’s official form is 67 incomplete and fails to indicate on its face that the federal 68 immigration official has probable cause to believe that the 69 person to be detained is a removable alien under federal 70 immigration law, but is supported by an affidavit, order, or 71 other official documentation that indicates that the federal 72 immigration agency has probable cause to believe that the person 73 to be detained is a removable alien under federal immigration 74 law; and 75 (c) The federal immigration agency supplies with its 76 detention request a Form I-200 Warrant for Arrest of Alien or a 77 Form I-205 Warrant of Removal/Deportation or a successor warrant 78 or other warrant authorized by federal law. 79 (3) “Inmate” means a person in the custody of a law 80 enforcement agency. 81 (4) “Law enforcement agency” means an agency in this state 82 charged with enforcement of state, county, municipal, or federal 83 laws or with managing custody of detained persons in this state 84 and includes municipal police departments, sheriff’s offices, 85 state police departments, state university and college police 86 departments, county correctional agencies, and the Department of 87 Corrections.
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2019168er 88 (5) “Local governmental entity” means any county, 89 municipality, or other political subdivision of this state. 90 (6) “Sanctuary policy” means a law, policy, practice, 91 procedure, or custom adopted or allowed by a state entity or 92 local governmental entity which prohibits or impedes a law 93 enforcement agency from complying with 8 U.S.C. s. 1373 or which 94 prohibits or impedes a law enforcement agency from communicating 95 or cooperating with a federal immigration agency so as to limit 96 such law enforcement agency in, or prohibit the agency from: 97 (a) Complying with an immigration detainer; 98 (b) Complying with a request from a federal immigration 99 agency to notify the agency before the release of an inmate or 100 detainee in the custody of the law enforcement agency; 101 (c) Providing a federal immigration agency access to an 102 inmate for interview; 103 (d) Participating in any program or agreement authorized 104 under section 287 of the Immigration and Nationality Act, 8 105 U.S.C. s. 1357; or 106 (e) Providing a federal immigration agency with an inmate’s 107 incarceration status or release date. 108 (7) “State entity” means the state or any office, board, 109 bureau, commission, department, branch, division, or institution 110 thereof, including institutions within the State University 111 System and the Florida College System. 112 908.103 Sanctuary policies prohibited.—A state entity, law 113 enforcement agency, or local governmental entity may not adopt 114 or have in effect a sanctuary policy. 115 908.104 Cooperation with federal immigration authorities.— 116 (1) A law enforcement agency shall use best efforts to
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2019168er 117 support the enforcement of federal immigration law. This 118 subsection applies to an official, representative, agent, or 119 employee of the entity or agency only when he or she is acting 120 within the scope of his or her official duties or within the 121 scope of his or her employment. 122 (2) Except as otherwise expressly prohibited by federal 123 law, a state entity, local governmental entity, or law 124 enforcement agency, or an employee, an agent, or a 125 representative of the entity or agency, may not prohibit or in 126 any way restrict a law enforcement agency from taking any of the 127 following actions with respect to information regarding a 128 person’s immigration status: 129 (a) Sending the information to or requesting, receiving, or 130 reviewing the information from a federal immigration agency for 131 purposes of this chapter. 132 (b) Recording and maintaining the information for purposes 133 of this chapter. 134 (c) Exchanging the information with a federal immigration 135 agency or another state entity, local governmental entity, or 136 law enforcement agency for purposes of this chapter. 137 (d) Using the information to comply with an immigration 138 detainer. 139 (e) Using the information to confirm the identity of a 140 person who is detained by a law enforcement agency. 141 (3)(a) For purposes of this subsection, the term 142 “applicable criminal case” means a criminal case in which: 143 1. The judgment requires the defendant to be confined in a 144 secure correctional facility; and 145 2. The judge:
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2019168er 146 a. Indicates in the record under s. 908.105 that the 147 defendant is subject to an immigration detainer; or 148 b. Otherwise indicates in the record that the defendant is 149 subject to a transfer into federal custody. 150 (b) In an applicable criminal case, when the judge 151 sentences a defendant who is the subject of an immigration 152 detainer to confinement, the judge shall issue an order 153 requiring the secure correctional facility in which the 154 defendant is to be confined to reduce the defendant’s sentence 155 by a period of not more than 12 days on the facility’s 156 determination that the reduction in sentence will facilitate the 157 seamless transfer of the defendant into federal custody. For 158 purposes of this paragraph, the term “secure correctional 159 facility” means a state correctional institution as defined in 160 s. 944.02 or a county detention facility or a municipal 161 detention facility as defined in s. 951.23. 162 (c) If the information specified in sub-subparagraph 163 (a)2.a. or sub-subparagraph (a)2.b. is not available at the time 164 the sentence is pronounced in the case, but is received by a law 165 enforcement agency afterwards, the law enforcement agency shall 166 notify the judge who shall issue the order described by 167 paragraph (b) as soon as the information becomes available. 168 (4) When a county correctional facility or the Department 169 of Corrections receives verification from a federal immigration 170 agency that a person subject to an immigration detainer is in 171 the law enforcement agency’s custody, the agency may securely 172 transport the person to a federal facility in this state or to 173 another point of transfer to federal custody outside the 174 jurisdiction of the law enforcement agency. The law enforcement
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2019168er 175 agency may transfer a person who is subject to an immigration 176 detainer and is confined in a secure correctional facility to 177 the custody of a federal immigration agency not earlier than 12 178 days before his or her release date. A law enforcement agency 179 shall obtain judicial authorization before securely transporting 180 an alien to a point of transfer outside of this state. 181 (5) This section does not require a state entity, local 182 governmental entity, or law enforcement agency to provide a 183 federal immigration agency with information related to a victim 184 of or a witness to a criminal offense if the victim or witness 185 timely and in good faith responds to the entity’s or agency’s 186 request for information and cooperation in the investigation or 187 prosecution of the offense. 188 (6) A state entity, local governmental entity, or law 189 enforcement agency that, pursuant to subsection (5), withholds 190 information regarding the immigration information of a victim of 191 or witness to a criminal offense shall document the victim’s or 192 witness’s cooperation in the entity’s or agency’s investigative 193 records related to the offense and shall retain the records for 194 at least 10 years for the purpose of audit, verification, or 195 inspection by the Auditor General. 196 (7) This section does not authorize a law enforcement 197 agency to detain an alien unlawfully present in the United 198 States pursuant to an immigration detainer solely because the 199 alien witnessed or reported a crime or was a victim of a 200 criminal offense. 201 (8) This section does not apply to any alien unlawfully 202 present in the United States if he or she is or has been a 203 necessary witness or victim of a crime of domestic violence,
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2019168er 204 rape, sexual exploitation, sexual assault, murder, manslaughter, 205 assault, battery, human trafficking, kidnapping, false 206 imprisonment, involuntary servitude, fraud in foreign labor 207 contracting, blackmail, extortion, or witness tampering. 208 908.105 Duties related to immigration detainers.— 209 (1) A law enforcement agency that has custody of a person 210 subject to an immigration detainer issued by a federal 211 immigration agency shall: 212 (a) Provide to the judge authorized to grant or deny the 213 person’s release on bail under chapter 903 notice that the 214 person is subject to an immigration detainer. 215 (b) Record in the person’s case file that the person is 216 subject to an immigration detainer. 217 (c) Upon determining that the immigration detainer is in 218 accordance with s. 908.102(2), comply with the requests made in 219 the immigration detainer. 220 (2) A law enforcement agency is not required to perform a 221 duty imposed by paragraph (1)(a) or paragraph (1)(b) with 222 respect to a person who is transferred to the custody of the 223 agency by another law enforcement agency if the transferring 224 agency performed that duty before the transfer. 225 (3) A judge who receives notice that a person is subject to 226 an immigration detainer shall cause the fact to be recorded in 227 the court record, regardless of whether the notice is received 228 before or after a judgment in the case. 229 908.106 Reimbursement of costs.—Each county correctional 230 facility shall enter into an agreement or agreements with a 231 federal immigration agency for temporarily housing persons who 232 are the subject of immigration detainers and for the payment of
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2019168er 233 the costs of housing and detaining those persons. A compliant 234 agreement may include any contract between a correctional 235 facility and a federal immigration agency for housing or 236 detaining persons subject to immigration detainers, such as 237 basic ordering agreements in effect on or after July 1, 2019, 238 agreements authorized by section 287 of the Immigration and 239 Nationality Act, 8 U.S.C. s. 1357, or successor agreements and 240 other similar agreements authorized by federal law. 241 908.107 Enforcement.— 242 (1) Any executive or administrative state, county, or 243 municipal officer who violates his or her duties under this 244 chapter may be subject to action by the Governor in the exercise 245 of his or her authority under the State Constitution and state 246 law. Pursuant to s. 1(b), Art. IV of the State Constitution, the 247 Governor may initiate judicial proceedings in the name of the 248 state against such officers to enforce compliance with any duty 249 under this chapter or restrain any unauthorized act contrary to 250 this chapter. 251 (2) In addition, the Attorney General may file suit against 252 a local governmental entity or local law enforcement agency in a 253 court of competent jurisdiction for declaratory or injunctive 254 relief for a violation of this chapter. 255 (3) If a local governmental entity or local law enforcement 256 agency violates this chapter, the court must enjoin the unlawful 257 sanctuary policy. The court has continuing jurisdiction over the 258 parties and subject matter and may enforce its orders with the 259 initiation of contempt proceedings as provided by law. 260 (4) An order approving a consent decree or granting an 261 injunction must include written findings of fact that describe
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2019168er 262 with specificity the existence and nature of the sanctuary 263 policy that violates this chapter. 264 908.108 Education records.—This chapter does not apply to 265 the release of information contained in education records of an 266 educational agency or institution, except in conformity with the 267 Family Educational Rights and Privacy Act of 1974, 20 U.S.C. s. 268 1232g. 269 908.109 Discrimination prohibited.—A state entity, a local 270 governmental entity, or a law enforcement agency, or a person 271 employed by or otherwise under the direction or control of the 272 entity or agency, may not base its actions under this chapter on 273 the gender, race, religion, national origin, or physical 274 disability of a person except to the extent authorized by the 275 United States Constitution or the State Constitution. 276 Section 2. A sanctuary policy, as defined in s. 908.102, 277 Florida Statutes, that is in effect on the effective date of 278 this act violates the public policy of this state and must be 279 repealed within 90 days after that date. 280 Section 3. Section 908.107, Florida Statutes, as created by 281 this act, shall take effect October 1, 2019, and, except as 282 otherwise expressly provided in this act, this act shall take 283 effect July 1, 2019.
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1 A bill to be entitled 2 An act relating to public safety; amending s. 16.555, 3 F.S.; providing for reallocation of unencumbered funds 4 returned to the Crime Stoppers Trust Fund; specifying 5 permissible uses for funds awarded to counties from 6 the trust fund; creating s. 16.557, F.S.; providing 7 definitions; providing criminal penalties for 8 disclosure of privileged communications or protected 9 information or information concerning such 10 communications or information; providing exceptions; 11 amending s. 212.15, F.S.; increasing threshold amounts 12 for certain theft offenses; amending s. 322.01, F.S.; 13 providing a definition; amending s. 322.055, F.S.; 14 reducing the length of driver license revocation for 15 possession or sale of, trafficking in, or conspiracy 16 to possess, sell, or traffic in a controlled 17 substance; deleting provisions authorizing a driver to 18 petition the Department of Highway Safety and Motor 19 Vehicles for restoration of his or her driving 20 privilege; amending s. 322.056, F.S.; reducing the 21 period for revocation or suspension of, or delay of 22 eligibility for, driver licenses or driving privileges 23 for certain persons found guilty of certain drug 24 offenses; deleting requirements relating to the 25 revocation or suspension of, or delay of eligibility
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26 for, driver licenses or driving privileges for certain 27 persons found guilty of certain alcohol or tobacco 28 offenses; deleting provisions authorizing a driver to 29 petition the Department of Highway Safety and Motor 30 Vehicles for restoration of his or her driving 31 privilege; repealing s. 322.057, F.S., relating to 32 discretionary revocation or suspension of a driver 33 license for certain persons who provide alcohol to 34 persons under a specified age; amending s. 322.24, 35 F.S.; extending penalties to a person who was never 36 issued a driver license; creating s. 322.75, F.S.; 37 requiring each clerk of court to establish a Driver 38 License Reinstatement Days program for reinstating 39 suspended driver licenses in certain circumstances; 40 providing duties of the clerks of the circuit courts 41 and the Department of Highway Safety and Motor 42 Vehicles; authorizing such clerks to compromise on or 43 waive certain fees and costs; providing eligibility 44 requirements; amending s. 394.47891, F.S.; revising 45 the list of individuals who, if charged or convicted 46 of certain criminal offenses, may participate in a 47 Military Veterans and Servicemembers Court Program 48 under certain circumstances; amending s. 394.917, 49 F.S.; revising the duties of the Department of 50 Children and Families concerning criminal offenders
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51 designated as sexually violent predators; amending s. 52 397.334, F.S.; conforming provisions to changes made 53 in the act; amending s. 455.213, F.S.; conforming a 54 cross-reference; requiring the Department of Business 55 and Professional Regulation or the applicable board to 56 use a specified process for the review of an 57 applicant's criminal record to determine the 58 applicant's eligibility for certain licenses; 59 prohibiting the conviction of a crime before a 60 specified date from being grounds for denial of 61 certain licenses; defining the term "conviction"; 62 authorizing a person to apply for a license before his 63 or her lawful release from confinement or supervision; 64 prohibiting additional fees for an applicant confined 65 or under supervision; prohibiting the department or 66 applicable board from basing a denial of a license 67 application solely on the applicant's current 68 confinement or supervision; authorizing the department 69 or applicable board to stay the issuance of an 70 approved license under certain circumstances; 71 requiring the department or applicable board to verify 72 an applicant's release with the Department of 73 Corrections or other applicable authority; providing 74 requirements for the appearance of certain applicants 75 at certain meetings; requiring the department or
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76 applicable board to provide an annually updated list 77 on its website specifying how certain crimes affect an 78 applicant's eligibility for licensure; providing that 79 certain information be identified for each crime on 80 the list; requiring such list be available to the 81 public upon request; amending s. 474.2165, F.S.; 82 authorizing a veterinarian to report certain suspected 83 criminal violations without notice to or authorization 84 from a client; providing an exception; amending s. 85 489.126, F.S.; providing a just cause defense for 86 criminal offenses and disciplinary violations; 87 providing an inference; deleting an intent requirement 88 for contractor offenses; revising elements of 89 offenses; revising criminal penalties for contractor 90 offenses; amending s. 489.553, F.S.; prohibiting the 91 conviction of a crime from being grounds for the 92 denial of registration after a specified time has 93 passed under certain circumstances; defining the term 94 "conviction"; authorizing a person to apply for 95 registration before his or her lawful release from 96 confinement or supervision; prohibiting the Department 97 of Business and Professional Regulation from charging 98 an applicant who is confined or under supervision 99 additional fees; prohibiting the applicable board from 100 basing the denial of registration solely on the
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101 applicant's current confinement or supervision; 102 authorizing the board to stay the issuance of an 103 approved registration under certain circumstances; 104 requiring the board to verify an applicant's release 105 with the Department of Corrections or other applicable 106 authority; providing requirements for the appearance 107 of certain applicants at certain meetings; requiring 108 the applicable board to provide a quarterly updated 109 list on its website specifying how certain crimes may 110 affect an applicant's eligibility for registration; 111 providing that certain information be identified for 112 each crime on the list; requiring such list be 113 available to the public upon request; amending s. 114 500.451, F.S.; abolishing mandatory minimum sentence 115 for the sale of horse meat for human consumption; 116 amending s. 509.151, F.S.; increasing threshold 117 amounts for certain theft offenses; amending s. 118 562.11, F.S.; deleting provisions relating to 119 withholding issuance of, or suspending or revoking, a 120 driver license or driving privilege for possession of 121 alcoholic beverages by persons under a specified age; 122 amending s. 562.111, F.S.; removing the mandatory 123 driver license suspension requirement for conviction 124 of possession of alcohol by a person younger than 21 125 years of age; amending s. 562.27, F.S.; reducing the
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126 offense severity of certain crimes related to the 127 possession of a still or related apparatus; amending 128 s. 562.451, F.S.; reducing the offense severity for 129 possession of one or more gallons of certain liquors; 130 amending s. 569.11, F.S.; revising penalties for 131 persons under a specified age who knowingly possess, 132 misrepresent their age or military service to 133 purchase, or purchase or attempt to purchase tobacco 134 products; authorizing, rather than requiring, a court 135 to direct the Department of Highway Safety and Motor 136 Vehicles to withhold issuance of or suspend a person's 137 driver license or driving privilege for certain 138 violations; amending s. 713.69, F.S.; increasing 139 thresholds for certain theft offenses; amending s. 140 775.082, F.S.; specifying that certain offenders 141 released from incarceration from county detention 142 facilities qualify as prison releasee reoffenders; 143 amending s. 784.046, F.S.; prohibiting attorney fees 144 in cases seeking an injunction for protection against 145 repeat, dating, or sexual violence; amending s. 146 784.048, F.S.; revising the definition of the term 147 "cyberstalk"; providing criminal penalties; amending 148 s. 784.0485, F.S.; prohibiting attorney fees in cases 149 seeking an injunction for protection against stalking; 150 amending s. 784.049, F.S.; revising legislative
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151 findings; revising definitions; providing that sexual 152 cyberharassment includes dissemination of an image 153 through electronic means other than publication on a 154 website; requiring that a person have a reasonable 155 expectation of privacy in an image for the publication 156 or dissemination of the image to qualify as sexual 157 cyberharassment; providing that certain actions do not 158 eliminate such an expectation of privacy; amending s. 159 790.052, F.S.; specifying that certain law enforcement 160 and correctional officers meet the definition of 161 "qualified law enforcement officer" for the purposes 162 of qualifying for certain rights during off-duty 163 hours; specifying that certain persons meet the 164 definition of "qualified retired law enforcement 165 officer" for the purposes of qualifying for certain 166 rights during off-duty hours; amending s. 790.22, 167 F.S.; authorizing, rather than requiring, a court to 168 withhold issuance of or suspend a person's driver 169 license or driving privilege for a minor who possesses 170 or uses a firearm in certain circumstances; amending 171 s. 800.09, F.S.; revising the definition of the term 172 "employee"; prohibiting certain lewd or lascivious 173 acts in the presence of county correctional personnel; 174 providing criminal penalties; amending s. 806.13, 175 F.S.; authorizing, rather than requiring, a court to
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176 withhold issuance of or suspend a person's driver 177 license or driving privilege for committing criminal 178 mischief by a minor; amending s. 812.014, F.S.; 179 increasing threshold amounts for certain theft 180 offenses; adding utility services to the list of items 181 the theft of which constitutes a felony of the third 182 degree; amending s. 812.015, F.S.; increasing 183 threshold amounts for certain theft offenses; revising 184 requirements for aggregation of retail thefts; 185 amending s. 812.0155, F.S.; removing a court's 186 authority to suspend a driver license for a 187 misdemeanor theft adjudication of guilt for a person 188 18 years of age or older; allowing a court to suspend 189 a driver license for a person 18 years of age or 190 younger as an alternative to other possible sentences; 191 amending s. 815.03, F.S.; revising the definition of 192 the term "access" for purposes of provisions relating 193 to computer crimes; amending s. 815.06, F.S.; revising 194 conduct constituting an offense against users of 195 computers, computer systems, computer networks, or 196 electronic devices; providing criminal penalties; 197 amending s. 817.413, F.S.; increasing threshold 198 amounts for certain theft offenses; amending s. 199 831.28, F.S.; criminalizing possession of a 200 counterfeit instrument with intent to defraud;
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201 amending s. 847.011, F.S.; prohibiting a person from 202 knowingly selling, lending, giving away, distributing, 203 transmitting, showing, or transmuting; offering to 204 commit such actions, having in his or her possession, 205 custody, or control with the intent to commit such 206 actions or advertising in any manner an obscene, 207 child-like sex doll; providing criminal penalties; 208 prohibiting a person from knowingly having in his or 209 her possession, custody, or control an obscene, child- 210 like sex doll; providing criminal penalties; amending 211 s. 849.01, F.S.; reducing the offense severity of 212 certain crimes relating to keeping a gambling house or 213 possessing certain gambling apparatuses; amending s. 214 877.112, F.S.; removing driver license revocation or 215 suspension as a penalty for certain offenses involving 216 nicotine products; amending s. 893.135, F.S.; revising 217 threshold amounts for trafficking in hydrocodone; 218 amending s. 900.05, F.S.; revising and providing 219 definitions; revising and providing data required to 220 be collected and reported to the Department of Law 221 Enforcement by specified entities; requiring the 222 Department of Law Enforcement to publish data received 223 from reporting agencies by a specified date; imposing 224 penalties on reporting agencies for noncompliance with 225 data reporting requirements; declaring information
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226 that is confidential and exempt upon collection by a 227 reporting agency remains confidential and exempt when 228 reported to the department; amending s. 921.0022, 229 F.S.; conforming provisions of the offense severity 230 ranking chart of the Criminal Punishment Code to 231 changes made by the act; ranking introduction, or 232 possession of, a cellular telephone or other portable 233 communication device on county detention facility 234 grounds; creating s. 943.0578, F.S.; establishing 235 eligibility criteria for expunction of a criminal 236 history record by a person found to have acted in 237 lawful self-defense; requiring the Department of Law 238 Enforcement to issue a certificate of eligibility for 239 expunction if specified criteria are fulfilled; 240 specifying requirements for a petition to expunge; 241 creating a penalty for providing false information on 242 such petition; requiring the department to adopt rules 243 relating to a certificate of expunction for lawful 244 self-defense; amending s. 943.0581, F.S.; clarifying 245 administrative expunction applies to criminal history 246 records resulting from an arrest made contrary to law 247 or by mistake; creating s. 943.0584, F.S.; providing a 248 definition; specifying criminal history records which 249 are ineligible for court-ordered expunction or court- 250 ordered sealing; amending s. 943.0585, F.S.; providing
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251 eligibility criteria for court-ordered expunction of a 252 criminal history record; requiring the Department of 253 Law Enforcement to issue a certificate of eligibility 254 to petitioners meeting eligibility criteria; 255 specifying requirements for a petition for court- 256 ordered expunction; specifying a court's authority to 257 expunge criminal history records; specifying the 258 process for a petition to expunge a criminal history 259 record; specifying the process following the issuance 260 of an order to expunge a criminal history record; 261 specifying the effect of an order to expunge a 262 criminal history record; amending s. 943.059, F.S.; 263 providing eligibility criteria for court-ordered 264 sealing of a criminal history record; requiring the 265 department to issue a certificate of eligibility to 266 petitioners meeting eligibility criteria; specifying 267 requirements for a petition for court-ordered sealing; 268 specifying a court's authority to seal criminal 269 history records; specifying the process for a petition 270 to seal a criminal history record; specifying the 271 effect of an order to seal a criminal history record; 272 creating s. 943.0595, F.S.; requiring the Department 273 of Law Enforcement to adopt rules to implement 274 administrative sealing of specified criminal history 275 records; providing eligibility criteria for
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276 administrative sealing of criminal history records; 277 specifying ineligible criminal history records; 278 providing for an unlimited number of times a person 279 with an eligible criminal history record may receive 280 administrative sealing; requiring the clerk of court 281 to transmit a certified copy of an eligible criminal 282 history record to the department upon the resolution 283 of a criminal case; specifying that the effect of 284 automatic sealing is the same as court-ordered 285 sealing; amending s. 943.325, F.S.; revising 286 legislative findings relating to the use of the DNA 287 database; amending s. 943.6871, F.S.; declaring 288 information received by the Department of Law 289 Enforcement from a reporting agency that is 290 confidential and exempt upon collection remains 291 confidential and exempt; requiring the Criminal and 292 Juvenile Justice Information Systems Council to 293 develop specifications for a uniform arrest affidavit; 294 providing requirements for the specifications; 295 requiring the council to develop specifications for a 296 uniform criminal charge and disposition statute 297 crosswalk table and uniform criminal disposition and 298 sentencing crosswalk table; requiring the department 299 to procure the affidavit and statute crosswalk tables 300 by a certain date; requiring law enforcement agencies
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301 to use the uniform arrest affidavit and other agencies 302 to use the statute crosswalk tables by a certain date; 303 amending s. 944.40, F.S.; including escape while on 304 furlough in the offense of escape; providing criminal 305 penalties; amending s. 944.47, F.S.; providing 306 enhanced penalties for offenses involving introduction 307 of contraband in correctional facilities when 308 committed by correctional facility employees; amending 309 s. 944.704, F.S.; requiring transition assistance 310 staff to provide job assignment credentialing and 311 industry certification information to inmates prior to 312 release; authorizing the Department of Corrections to 313 increase the number of employees serving as a 314 transition specialist and employment specialist; 315 amending s. 944.705, F.S.; requiring the department to 316 establish a telephone hotline for released offenders; 317 requiring the department to provide a comprehensive 318 community reentry resource directory to each inmate 319 before release; requiring the department to use 320 certain programming data to notify inmates about 321 reentry resources before release; requiring the 322 department to allow nonprofit faith-based, business 323 and professional, civic, and community organizations 324 to apply to be registered to provide inmate reentry 325 services; requiring the department to adopt policies
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326 for screening, approving, and registering 327 organizations that apply; authorizing the department 328 to contract with public or private educational 329 institutions to assist veteran inmates in applying for 330 certain benefits; authorizing the department to 331 contract with public or private organizations to 332 establish transitional employment programs that 333 provide employment opportunities to recently released 334 inmates; requiring the department to adopt rules; 335 amending s. 944.801, F.S.; authorizing the department 336 to expand the use of job assignment credentialing and 337 industry certifications; requiring the department to 338 develop a Prison Entrepreneurship Program and adopt 339 procedures for inmate admission; specifying program 340 requirements; requiring the department to enter into 341 agreements with certain entities to carry out duties 342 associated with the program; amending s. 948.001, 343 F.S.; revising the definition of administrative 344 probation; authorizing a court to order an offender 345 into administrative probation; amending s. 948.013, 346 F.S.; specifying when the Department of Corrections 347 may transfer an offender to administrative probation; 348 amending s. 948.04, F.S.; requiring a court to early 349 terminate a term of probation or convert the term to 350 administrative probation under certain circumstances;
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351 allowing a court to continue reporting probation upon 352 making written findings; amending s. 948.05, F.S.; 353 requiring the Department of Corrections to implement a 354 graduated incentives program for probationers and 355 offenders on community control; authorizing the 356 department to issue certain incentives without leave 357 of court; amending s. 948.06, F.S.; requiring a court 358 to modify or continue a probationary term under 359 certain circumstances; requiring each judicial circuit 360 to establish an alternative sanctioning program; 361 defining low- and moderate-risk level technical 362 violations of probation; establishing permissible 363 sanctions for low- and moderate-risk violations of 364 probation under the program; establishing eligibility 365 criteria; authorizing a probationer who allegedly 366 committed a technical violation to waive participation 367 in or elect to participate in the program, admit to 368 the violation, agree to comply with the recommended 369 sanction, and agree to waive certain rights; requiring 370 a probation officer to submit the recommended sanction 371 and certain documentation to the court if the 372 probationer admits to committing the violation; 373 authorizing the court to impose the recommended 374 sanction or direct the department to submit a 375 violation report, affidavit, and warrant to the court;
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376 authorizing a probation officer to submit a violation 377 report, affidavit, and warrant to the court in certain 378 circumstances; amending s. 948.08, F.S.; expanding 379 eligibility criteria for pretrial substance abuse 380 education programs to include a person with two or 381 fewer convictions for nonviolent felonies; revising 382 the list of individuals who, if charged with certain 383 felonies, are eligible for voluntary admission into a 384 pretrial veterans' treatment intervention program 385 under certain circumstances; creating s. 948.081, 386 F.S.; authorizing community court programs; amending 387 s. 948.16, F.S.; revising the list of individuals who, 388 if charged with certain misdemeanors, are eligible for 389 voluntary admission into a misdemeanor pretrial 390 veterans' treatment intervention program under certain 391 circumstances; amending s. 948.21, F.S.; revising the 392 list of individuals who, if probationers or community 393 controlees, may be required to participate in a 394 certain treatment program under certain circumstances; 395 providing program criteria; amending s. 951.22, F.S.; 396 providing an exception to a prohibition on contraband 397 for certain legal documents; prohibiting introduction 398 into or possession of certain cellular telephones or 399 other portable communication devices on the grounds of 400 any county detention facility; providing criminal
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401 penalties; amending s. 958.04, F.S.; revising the 402 criteria authorizing a court to sentence as a youthful 403 offender a person who is found guilty of, or who pled 404 nolo contendere or guilty to, committing a felony 405 before the person turned 21 years of age; amending s. 406 960.07, F.S.; increasing the timeframe for filing a 407 crime victim compensation claim; providing an 408 extension for good cause for a specified period; 409 increasing the timeframe for a victim or intervenor 410 who was under the age of 18 at the time of the crime 411 to file a claim; provides an extension for good cause 412 of 2 additional years; increasing the timeframe for 413 filing a claim for victim compensation for a victim of 414 a sexually violent offense; amending s. 960.13, F.S.; 415 increasing the timeframe for prompt reporting of a 416 crime to be eligible for a victim compensation award; 417 amending s. 960.195, F.S.; increasing the timeframe 418 for reporting a criminal or delinquent act resulting 419 in property loss of an elderly person or disabled 420 adult; amending s. 960.196, F.S.; increasing the 421 timeframe to report certain human trafficking offenses 422 to be eligible for a victim relocation assistance 423 award; providing an extension for good cause; amending 424 s. 985.557, F.S.; repealing provisions requiring the 425 mandatory direct filing of charges in adult court
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426 against juveniles in certain circumstances; amending 427 s. 985.565, F.S.; conforming provisions to changes 428 made by the act; providing effective dates. 429 430 Be It Enacted by the Legislature of the State of Florida: 431 432 Section 1. Effective July 1, 2019, paragraph (c) is added 433 to subsection (4) and paragraph (e) is added to subsection (5) 434 of section 16.555, Florida Statutes, to read: 435 16.555 Crime Stoppers Trust Fund; rulemaking.— 436 (4) 437 (c) After initial distribution of funds to the judicial 438 circuit in which they were collected, up to 50 percent of the 439 unencumbered funds returned to the Crime Stoppers Trust Fund 440 from that circuit from a previous grant year, may, in subsequent 441 grant years, be reallocated to other judicial circuits for 442 special crime stoppers initiatives or other programs of the 443 Florida Association of Crime Stoppers, as prioritized and 444 determined by the department and the Florida Association of 445 Crime Stoppers. 446 (5) 447 (e) A county that is awarded a grant under this section 448 may use such funds to pay rewards for tips that result in any of 449 the following: 450 1. An arrest.
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451 2. Recovery of stolen property. 452 3. Recovery of illegal narcotics. 453 4. Recovery of the body of a homicide victim. 454 5. Recovery of a human trafficking victim or a missing 455 person connected to criminal activity. 456 6. Recovery of an illegal firearm or an illegal weapon on 457 a K-12 school campus. 458 7. Prevention of a terrorist act. 459 8. Solving and closing a homicide or other violent felony 460 offense that remains unsolved for 1 year or more after being 461 reported to a law enforcement agency and that has no viable and 462 unexplored investigatory leads. 463 Section 2. Section 16.557, Florida Statutes, is created to 464 read: 465 16.557 Crime stoppers organizations; disclosure of 466 privileged communications or protected information.— 467 (1) As used in this section, the term: 468 (a) "Crime stoppers organization" means a private not-for- 469 profit organization that collects and expends donations for 470 rewards to persons who report to the organization information 471 concerning criminal activity and forwards that information to 472 appropriate law enforcement agencies. 473 (b) "Privileged communication" means the act of providing 474 information to a crime stoppers organization for the purpose of 475 reporting alleged criminal activity.
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476 (c) "Protected information" includes the identity of a 477 person who engages in privileged communication with a crime 478 stoppers program and any records, recordings, oral or written 479 statements, papers, documents, or other tangible things provided 480 to or collected by a crime stoppers organization, a law 481 enforcement crime stoppers coordinator or his or her staff, or a 482 law enforcement agency in connection with such privileged 483 communication. 484 (2)(a) Except pursuant to criminal discovery or as 485 provided in paragraph (b), a person who discloses a privileged 486 communication or protected information or any information 487 concerning a privileged communication or protected information 488 commits a felony of the third degree, punishable as provided in 489 s. 775.082, s. 775.083, or s. 775.084. 490 (b) This subsection does not apply to: 491 1. The person who provides the privileged communication or 492 protected information; or 493 2. A law enforcement officer or an employee of a law 494 enforcement agency or the Department of Legal Affairs when 495 acting within the scope of his or her official duties. 496 (c) This subsection does not limit the right of any 497 criminal defendant to criminal discovery. 498 Section 3. Subsection (2) of section 212.15, Florida 499 Statutes, is amended to read: 500 212.15 Taxes declared state funds; penalties for failure
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501 to remit taxes; due and delinquent dates; judicial review.— 502 (2) Any person who, with intent to unlawfully deprive or 503 defraud the state of its moneys or the use or benefit thereof, 504 fails to remit taxes collected under this chapter commits is 505 guilty of theft of state funds, punishable as follows: 506 (a) If the total amount of stolen revenue is less than 507 $1,000 $300, the offense is a misdemeanor of the second degree, 508 punishable as provided in s. 775.082 or s. 775.083. Upon a 509 second conviction, the offender commits is guilty of a 510 misdemeanor of the first degree, punishable as provided in s. 511 775.082 or s. 775.083. Upon a third or subsequent conviction, 512 the offender commits is guilty of a felony of the third degree, 513 punishable as provided in s. 775.082, s. 775.083, or s. 775.084. 514 (b) If the total amount of stolen revenue is $1,000 $300 515 or more, but less than $20,000, the offense is a felony of the 516 third degree, punishable as provided in s. 775.082, s. 775.083, 517 or s. 775.084. 518 (c) If the total amount of stolen revenue is $20,000 or 519 more, but less than $100,000, the offense is a felony of the 520 second degree, punishable as provided in s. 775.082, s. 775.083, 521 or s. 775.084. 522 (d) If the total amount of stolen revenue is $100,000 or 523 more, the offense is a felony of the first degree, punishable as 524 provided in s. 775.082, s. 775.083, or s. 775.084. 525 Section 4. Subsections (41) through (46) of section
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526 322.01, Florida Statutes, are renumbered as subsections (42) 527 through (47), respectively, and a new subsection (41) is added 528 to that section, to read: 529 322.01 Definitions.—As used in this chapter: 530 (41) "Suspension or revocation equivalent status" is a 531 designation for a person who does not have a driver license or 532 driving privilege but would qualify for suspension or revocation 533 of his or her driver license or driving privilege if licensed. 534 The department may designate a person as having suspension or 535 revocation equivalent status in the same manner as it is 536 authorized to suspend or revoke a driver license or driving 537 privilege by law. 538 Section 5. Subsections (1) through (4) of section 322.055, 539 Florida Statutes, are amended to read: 540 322.055 Revocation or suspension of, or delay of 541 eligibility for, driver license for persons 18 years of age or 542 older convicted of certain drug offenses.— 543 (1) Notwithstanding s. 322.28, upon the conviction of a 544 person 18 years of age or older for possession or sale of, 545 trafficking in, or conspiracy to possess, sell, or traffic in a 546 controlled substance, the court shall direct the department to 547 suspend revoke the person's driver license or driving privilege 548 of the person. The suspension period of such revocation shall be 549 6 months 1 year or until the person is evaluated for and, if 550 deemed necessary by the evaluating agency, completes a drug
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551 treatment and rehabilitation program approved or regulated by 552 the Department of Children and Families. However, the court may, 553 upon finding a compelling circumstance to warrant an exception 554 in its sound discretion, direct the department to issue a 555 license for driving privilege restricted to business or 556 employment purposes only, as defined by s. 322.271, if the 557 person is otherwise qualified for such a license. A driver whose 558 license or driving privilege has been suspended or revoked under 559 this section or s. 322.056 may, upon the expiration of 6 months, 560 petition the department for restoration of the driving privilege 561 on a restricted or unrestricted basis depending on length of 562 suspension or revocation. In no case shall a restricted license 563 be available until 6 months of the suspension or revocation 564 period has expired. 565 (2) If a person 18 years of age or older is convicted for 566 the possession or sale of, trafficking in, or conspiracy to 567 possess, sell, or traffic in a controlled substance and such 568 person is eligible by reason of age for a driver license or 569 privilege, the court shall direct the department to withhold 570 issuance of such person's driver license or driving privilege 571 for a period of 6 months 1 year after the date the person was 572 convicted or until the person is evaluated for and, if deemed 573 necessary by the evaluating agency, completes a drug treatment 574 and rehabilitation program approved or regulated by the 575 Department of Children and Families. However, the court may,
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576 upon finding a compelling circumstance to warrant an exception 577 in its sound discretion, direct the department to issue a 578 license for driving privilege restricted to business or 579 employment purposes only, as defined by s. 322.271, if the 580 person is otherwise qualified for such a license. A driver whose 581 license or driving privilege has been suspended or revoked under 582 this section or s. 322.056 may, upon the expiration of 6 months, 583 petition the department for restoration of the driving privilege 584 on a restricted or unrestricted basis depending on the length of 585 suspension or revocation. In no case shall a restricted license 586 be available until 6 months of the suspension or revocation 587 period has expired. 588 (3) If a person 18 years of age or older is convicted for 589 the possession or sale of, trafficking in, or conspiracy to 590 possess, sell, or traffic in a controlled substance and such 591 person's driver license or driving privilege is already under 592 suspension or revocation for any reason, the court shall direct 593 the department to extend the period of such suspension or 594 revocation by an additional period of 6 months 1 year or until 595 the person is evaluated for and, if deemed necessary by the 596 evaluating agency, completes a drug treatment and rehabilitation 597 program approved or regulated by the Department of Children and 598 Families. However, the court may, upon finding a compelling 599 circumstance to warrant an exception in its sound discretion, 600 direct the department to issue a license for driving privilege
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601 restricted to business or employment purposes only, as defined 602 by s. 322.271, if the person is otherwise qualified for such a 603 license. A driver whose license or driving privilege has been 604 suspended or revoked under this section or s. 322.056 may, upon 605 the expiration of 6 months, petition the department for 606 restoration of the driving privilege on a restricted or 607 unrestricted basis depending on the length of suspension or 608 revocation. In no case shall a restricted license be available 609 until 6 months of the suspension or revocation period has 610 expired. 611 (4) If a person 18 years of age or older is convicted for 612 the possession or sale of, trafficking in, or conspiracy to 613 possess, sell, or traffic in a controlled substance and such 614 person is ineligible by reason of age for a driver license or 615 driving privilege, the court shall direct the department to 616 withhold issuance of such person's driver license or driving 617 privilege for a period of 6 months 1 year after the date that he 618 or she would otherwise have become eligible or until he or she 619 becomes eligible by reason of age for a driver license and is 620 evaluated for and, if deemed necessary by the evaluating agency, 621 completes a drug treatment and rehabilitation program approved 622 or regulated by the Department of Children and Families. 623 However, the court may, upon finding a compelling circumstance 624 to warrant an exception in its sound discretion, direct the 625 department to issue a license for driving privilege restricted
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626 to business or employment purposes only, as defined by s. 627 322.271, if the person is otherwise qualified for such a 628 license. A driver whose license or driving privilege has been 629 suspended or revoked under this section or s. 322.056 may, upon 630 the expiration of 6 months, petition the department for 631 restoration of the driving privilege on a restricted or 632 unrestricted basis depending on the length of suspension or 633 revocation. In no case shall a restricted license be available 634 until 6 months of the suspension or revocation period has 635 expired. 636 Section 6. Section 322.056, Florida Statutes, is amended 637 to read: 638 322.056 Mandatory revocation or suspension of, or delay of 639 eligibility for, driver license for persons under age 18 found 640 guilty of certain alcohol, drug, or tobacco offenses; 641 prohibition.— 642 (1) Notwithstanding the provisions of s. 322.055, if a 643 person under 18 years of age is found guilty of or delinquent 644 for a violation of s. 562.11(2), s. 562.111, or chapter 893, 645 and: 646 (a) The person is eligible by reason of age for a driver 647 license or driving privilege, the court shall direct the 648 department to revoke or to withhold issuance of his or her 649 driver license or driving privilege for a period of 6 months.: 650 1. Not less than 6 months and not more than 1 year for the
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651 first violation. 652 2. Two years, for a subsequent violation. 653 (b) The person's driver license or driving privilege is 654 under suspension or revocation for any reason, the court shall 655 direct the department to extend the period of suspension or 656 revocation by an additional period of 6 months.: 657 1. Not less than 6 months and not more than 1 year for the 658 first violation. 659 2. Two years, for a subsequent violation. 660 (c) The person is ineligible by reason of age for a driver 661 license or driving privilege, the court shall direct the 662 department to withhold issuance of his or her driver license or 663 driving privilege for a period of: 664 1. Not less than 6 months and not more than 1 year after 665 the date on which he or she would otherwise have become 666 eligible, for the first violation. 667 2. Two years after the date on which he or she would 668 otherwise have become eligible, for a subsequent violation. 669 670 However, the court may, upon finding a compelling circumstance 671 to warrant an exception in its sound discretion, direct the 672 department to issue a license for driving privileges restricted 673 to business or employment purposes only, as defined in s. 674 322.271, if the person is otherwise qualified for such a 675 license.
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676 (2) If a person under 18 years of age is found by the 677 court to have committed a noncriminal violation under s. 569.11 678 or s. 877.112(6) or (7) and that person has failed to comply 679 with the procedures established in that section by failing to 680 fulfill community service requirements, failing to pay the 681 applicable fine, or failing to attend a locally available 682 school-approved anti-tobacco program, and: 683 (a) The person is eligible by reason of age for a driver 684 license or driving privilege, the court shall direct the 685 department to revoke or to withhold issuance of his or her 686 driver license or driving privilege as follows: 687 1. For the first violation, for 30 days. 688 2. For the second violation within 12 weeks of the first 689 violation, for 45 days. 690 (b) The person's driver license or driving privilege is 691 under suspension or revocation for any reason, the court shall 692 direct the department to extend the period of suspension or 693 revocation by an additional period as follows: 694 1. For the first violation, for 30 days. 695 2. For the second violation within 12 weeks of the first 696 violation, for 45 days. 697 (c) The person is ineligible by reason of age for a driver 698 license or driving privilege, the court shall direct the 699 department to withhold issuance of his or her driver license or 700 driving privilege as follows:
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701 1. For the first violation, for 30 days. 702 2. For the second violation within 12 weeks of the first 703 violation, for 45 days. 704 705 Any second violation of s. 569.11 or s. 877.112(6) or (7) not 706 within the 12-week period after the first violation will be 707 treated as a first violation and in the same manner as provided 708 in this subsection. 709 (3) If a person under 18 years of age is found by the 710 court to have committed a third violation of s. 569.11 or s. 711 877.112(6) or (7) within 12 weeks of the first violation, the 712 court must direct the Department of Highway Safety and Motor 713 Vehicles to suspend or withhold issuance of his or her driver 714 license or driving privilege for 60 consecutive days. Any third 715 violation of s. 569.11 or s. 877.112(6) or (7) not within the 716 12-week period after the first violation will be treated as a 717 first violation and in the same manner as provided in subsection 718 (2). 719 (2)(4) A penalty imposed under this section shall be in 720 addition to any other penalty imposed by law. 721 (5) The suspension or revocation of a person's driver 722 license imposed pursuant to subsection (2) or subsection (3), 723 shall not result in or be cause for an increase of the convicted 724 person's, or his or her parent's or legal guardian's, automobile 725 insurance rate or premium or result in points assessed against
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726 the person's driving record. 727 Section 7. Section 322.057, Florida Statutes, is repealed. 728 Section 8. Subsections (1) and (5) of section 322.34, 729 Florida Statutes, are amended to read: 730 322.34 Driving while license suspended, revoked, canceled, 731 or disqualified.— 732 (1) Except as provided in subsection (2), any person whose 733 driver license or driving privilege has been canceled, 734 suspended, or revoked, or who does not have a driver license or 735 driving privilege but is under suspension or revocation 736 equivalent status as defined in s. 322.01, except a "habitual 737 traffic offender" as defined in s. 322.264, who drives a vehicle 738 upon the highways of this state while such license or privilege 739 is canceled, suspended, or revoked is guilty of a moving 740 violation, punishable as provided in chapter 318. 741 (5) Any person who has been designated a "habitual traffic 742 offender" as defined in whose driver license has been revoked 743 pursuant to s. 322.264 (habitual offender) and who drives any 744 motor vehicle upon the highways of this state while designated a 745 habitual traffic offender commits while such license is revoked 746 is guilty of a felony of the third degree, punishable as 747 provided in s. 775.082, s. 775.083, or s. 775.084. 748 Section 9. Section 322.75, Florida Statutes, is created to 749 read: 750 322.75 Driver License Reinstatement Days.—
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751 (1) Each clerk of court shall establish a Driver License 752 Reinstatement Days program for reinstating suspended driver 753 licenses. Participants may include, but are not limited to, the 754 Department of Highway Safety and Motor Vehicles, the state 755 attorney's office, the public defender's office, the circuit and 756 county courts, the clerk of court, and any interested community 757 organization. 758 (2) The clerk of court, in consultation with other 759 participants, shall select one or more days for an event at 760 which a person may have his or her driver license reinstated. 761 The clerk may work with the Florida Association of Court Clerks 762 to promote, develop communications, and coordinate the event. A 763 person must pay the full license reinstatement fee; however, the 764 clerk may reduce or waive other fees and costs to facilitate 765 reinstatement. 766 (3) The clerk of court is encouraged to schedule at least 767 one event on a weekend or with hours after 5 p.m. on a weekday. 768 (4)(a) A person is eligible for reinstatement under the 769 program if his or her license was suspended due to: 770 1. Driving without a valid driver license; 771 2. Driving with a suspended driver license; 772 3. Failing to make a payment on penalties in collection; 773 4. Failing to appear in court for a traffic violation; or 774 5. Failing to comply with any provision of chapter 318 or 775 this chapter.
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776 (b) Notwithstanding paragraphs (5)(a)-(c), a person is 777 eligible for reinstatement under the program if the period of 778 suspension or revocation has elapsed, the person has completed 779 any required course or program as described in paragraph (5)(c), 780 and the person is otherwise eligible for reinstatement. 781 (5) A person is not eligible for reinstatement under the 782 program if his or her driver license is suspended or revoked due 783 to: 784 (a) Failure to fulfill a court-ordered child support 785 obligation; 786 (b) A violation of s. 316.193; 787 (c) Failure to complete a driver training program, driver 788 improvement course, or alcohol or substance abuse education or 789 evaluation program required under s. 316.192, s. 316.193, s. 790 322.2616, s. 322.271, or s. 322.264; 791 (d) A traffic-related felony; or 792 (e) The person being a habitual traffic offender under s. 793 322.264. 794 (6) The clerk of court and the Department of Highway 795 Safety and Motor Vehicles shall verify any information necessary 796 for reinstatement of a driver license under the program. 797 (7) The clerk of court must collect and report to the 798 Florida Clerks of the Court Operations Corporation: 799 (a) The number of cases paid in full. 800 (b) The number of cases put on a payment plan.
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801 (c) The number of driver license reinstatements. 802 (d) The number of driver licenses made eligible for 803 reinstatement. 804 (e) The amount of fees and costs collected, reported by 805 the entity receiving the funds. The Florida Clerks of the Court 806 Operations Corporation must report the aggregate funds received 807 by the clerks of court, the local governmental entities, and 808 state entities, including general revenue. 809 (f) The personnel, operating, security, and other 810 expenditures incurred by the clerk of court. 811 (g) The number of cases that fail to comply with a payment 812 plan and subsequently result in driver license suspension. 813 (8) The Florida Clerks of Court Operations Corporation 814 shall report the information collected in subsection (7) in its 815 annual report required by s. 28.35. 816 Section 10. Section 394.47891, Florida Statutes, is 817 amended to read: 818 394.47891 Military veterans, and servicemembers, and other 819 court programs.—The chief judge of each judicial circuit may 820 establish a Military Veterans and Servicemembers Court Program 821 under which veterans, as defined in s. 1.01, including veterans 822 who were discharged or released under a general discharge, and 823 servicemembers, as defined in s. 250.01; individuals who are 824 current or former United States Department of Defense 825 contractors, provided any separation was not due to the former
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826 contractor's bad conduct; and individuals who are current or 827 former military members of a foreign allied country, provided 828 any discharge was the equivalent of an honorable or general 829 discharge, who are charged or convicted of a criminal offense 830 and who suffer from a military-related mental illness, traumatic 831 brain injury, substance abuse disorder, or psychological problem 832 can be sentenced in accordance with chapter 921 in a manner that 833 appropriately addresses the severity of the mental illness, 834 traumatic brain injury, substance abuse disorder, or 835 psychological problem through services tailored to the 836 individual needs of the participant. Entry into any Military 837 Veterans and Servicemembers Court Program must be based upon the 838 sentencing court's assessment of the defendant's criminal 839 history, military service, substance abuse treatment needs, 840 mental health treatment needs, amenability to the services of 841 the program, the recommendation of the state attorney and the 842 victim, if any, and the defendant's agreement to enter the 843 program. 844 Section 11. Subsection (2) of section 394.917, Florida 845 Statutes, is amended to read: 846 394.917 Determination; commitment procedure; mistrials; 847 housing; counsel and costs in indigent appellate cases.— 848 (2) If the court or jury determines that the person is a 849 sexually violent predator, upon the expiration of the 850 incarcerative portion of all criminal sentences and disposition
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851 of any detainers, the person shall be committed to the custody 852 of the Department of Children and Families for control, care, 853 and treatment, and rehabilitation of criminal offenders, until 854 such time as the person's mental abnormality or personality 855 disorder has so changed that it is safe for the person to be at 856 large. At all times, persons who are detained or committed under 857 this part shall be kept in a secure facility segregated from 858 patients of the department who are not detained or committed 859 under this part. 860 Section 12. Subsection (2) of section 397.334, Florida 861 Statutes, is amended to read: 862 397.334 Treatment-based drug court programs.— 863 (2) Entry into any pretrial treatment-based drug court 864 program shall be voluntary. When neither s. 948.08(6)(c)1. s. 865 948.08(6)(a)1. nor 2. applies, the court may order an eligible 866 individual to enter into a pretrial treatment-based drug court 867 program only upon written agreement by the individual, which 868 shall include a statement that the individual understands the 869 requirements of the program and the potential sanctions for 870 noncompliance. 871 Section 13. Subsections (3) through (12) of section 872 455.213, Florida Statutes, are renumbered as subsections (4) 873 through (13), respectively, present subsection (2) is amended, 874 and a new subsection (3) is added to that section, to read: 875 455.213 General licensing provisions.—
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876 (2) Before the issuance of any license, the department may 877 charge an initial license fee as determined by rule of the 878 applicable board or, if no such board exists, by rule of the 879 department. Upon receipt of the appropriate license fee, except 880 as provided in subsection (4) (3), the department shall issue a 881 license to any person certified by the appropriate board, or its 882 designee, or the department when there is no board, as having 883 met the applicable requirements imposed by law or rule. However, 884 an applicant who is not otherwise qualified for licensure is not 885 entitled to licensure solely based on a passing score on a 886 required examination. Upon a determination by the department 887 that it erroneously issued a license, or upon the revocation of 888 a license by the applicable board, or by the department when 889 there is no board, the licensee must surrender his or her 890 license to the department. 891 (3)(a) Notwithstanding any other provision of law, the 892 department or applicable board shall use the process in this 893 subsection for review of an applicant's criminal record to 894 determine his or her eligibility for licensure. 895 (b) A conviction, or any other adjudication, for a crime 896 more than 5 years before the date the application is received by 897 the applicable board may not be grounds for denial of a license. 898 For purposes of this paragraph, the term "conviction" means a 899 determination of guilt that is the result of a plea or trial, 900 regardless of whether adjudication is withheld. This paragraph
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901 does not limit the department or applicable board from 902 considering an applicant's criminal history that includes a 903 crime listed in s. 775.21(4)(a)1. or s. 776.08 at any time only 904 if such criminal history has been found to relate to the 905 practice of the applicable profession, or any crime if it has 906 been found to relate to good moral character if the applicable 907 practice act requires such a standard. 908 (c)1. A person may apply for a license before his or her 909 lawful release from confinement or supervision. The department 910 may not charge an applicant an additional fee for being confined 911 or under supervision. The department or applicable board may not 912 deny an application for a license solely on the basis of the 913 applicant's current confinement or supervision. 914 2. After a license application is approved, the department 915 or applicable board may stay the issuance of a license until the 916 applicant is lawfully released from confinement or supervision 917 and the applicant notifies the department or applicable board of 918 such release. The department or applicable board must verify the 919 applicant's release with the Department of Corrections, or other 920 applicable authority, before it issues a license. 921 3. If an applicant is unable to appear in person due to 922 his or her confinement or supervision, the department or 923 applicable board must permit the applicant to appear by 924 teleconference or video conference, as appropriate, at any 925 meeting of the applicable board or other hearing by the agency
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926 concerning his or her application. 927 4. If an applicant is confined or under supervision, the 928 Department of Corrections, or other applicable authority, and 929 the department or applicable board shall cooperate and 930 coordinate to facilitate the appearance of the applicant at a 931 board meeting or agency hearing in person, by teleconference, or 932 by video conference, as appropriate. 933 (d) The department and each applicable board shall compile 934 a list of crimes that, if committed and regardless of 935 adjudication, do not relate to the practice of the profession or 936 the ability to practice the profession and do not constitute 937 grounds for denial of a license. This list shall be made 938 available on the department's website and be updated annually. 939 Beginning October 1, 2019, each applicable board shall compile a 940 list of crimes that although reported by an applicant for 941 licensure, were not used as a basis for denial. The list must 942 identify the crime reported for each license application and 943 the: 944 1. Date of conviction or sentencing date, whichever is 945 later. 946 2. Date adjudication was entered. 947 (e) The department and each applicable board shall compile 948 a list of crimes that have been used as a basis for denial of a 949 license in the past 2 years, which shall be made available on 950 the department's website. Beginning October 1, 2019, and updated
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951 quarterly thereafter, the applicable board shall compile a list 952 indicating each crime used as a basis for denial. For each crime 953 listed, the applicable board must identify the: 954 1. Date of conviction or sentencing date, whichever is 955 later. 956 2. Date adjudication was entered. 957 958 Such denials shall be available to the public upon request. 959 Section 14. Subsection (4) of section 474.2165, Florida 960 Statutes, is amended to read: 961 474.2165 Ownership and control of veterinary medical 962 patient records; report or copies of records to be furnished.— 963 (4) Except as otherwise provided in this section, such 964 records may not be furnished to, and the medical condition of a 965 patient may not be discussed with, any person other than the 966 client or the client's legal representative or other 967 veterinarians involved in the care or treatment of the patient, 968 except upon written authorization of the client. However, such 969 records may be furnished without written authorization under the 970 following circumstances: 971 (a) To any person, firm, or corporation that has procured 972 or furnished such examination or treatment with the client's 973 consent. 974 (b) In any civil or criminal action, unless otherwise 975 prohibited by law, upon the issuance of a subpoena from a court
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976 of competent jurisdiction and proper notice to the client or the 977 client's legal representative by the party seeking such records. 978 (c) For statistical and scientific research, provided the 979 information is abstracted in such a way as to protect the 980 identity of the patient and the client, or provided written 981 permission is received from the client or the client's legal 982 representative. 983 (d) In any criminal action or situation where a 984 veterinarian suspects a criminal violation. If a criminal 985 violation is suspected, a veterinarian may, without notice to or 986 authorization from the client, report the violation to a law 987 enforcement officer, an animal control officer who is certified 988 pursuant to s. 828.27(4)(a), or an agent appointed under s. 989 828.03. However, if a suspected violation occurs at a commercial 990 food-producing animal operation on land classified as 991 agricultural under s. 193.461, the veterinarian must provide 992 notice to the client or the client's legal representative before 993 reporting the suspected violation to an officer or agent under 994 this paragraph. The report may not include written medical 995 records except upon the issuance of an order from a court of 996 competent jurisdiction. 997 Section 15. Subsections (2) and (3) and present subsection 998 (4) of section 489.126, Florida Statutes, are amended, and new 999 subsections (4), (5), and (6) are added to that section to read: 1000 489.126 Moneys received by contractors.—
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1001 (2)(a) A contractor who receives, as initial payment, 1002 money totaling more than 10 percent of the contract price for 1003 repair, restoration, improvement, or construction to residential 1004 real property must: 1005 1.(a) Apply for permits necessary to do work within 30 1006 days after the date payment is made, except where the work does 1007 not require a permit under the applicable codes and ordinances, 1008 and 1009 2.(b) Start the work within 90 days after the date all 1010 necessary permits for work, if any, are issued, 1011 1012 unless the contractor has just cause for failing to apply for 1013 the necessary permits, starting the work, or refunding the 1014 payment, or unless the person who made the payment agreed, in 1015 writing, to a longer period to apply for the necessary permits 1016 or start the work or to longer periods for both. 1017 (b)1. It may be inferred that a contractor does not have 1018 just cause if the contractor fails to apply for the necessary 1019 permits, start the work, or refund payments, within 30 days of 1020 receiving written demand to apply for the necessary permits, 1021 start the work, or refund the payment, from the person who made 1022 the payment. 1023 2. Written demand must be made to the contractor in the 1024 form of a letter that includes a demand to apply for the 1025 necessary permits, start the work, or refund the payment sent
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1026 via certified mail, return receipt requested, mailed to the 1027 address listed in the contracting agreement. If there is no 1028 address for the contractor listed in the contracting agreement, 1029 or no written agreement exists, the letter must be mailed to the 1030 address listed with the Department of Business and Professional 1031 Regulation for licensing purposes or the local construction 1032 industry licensing board, if applicable. 1033 (3)(a) A contractor who receives money for repair, 1034 restoration, addition, improvement, or construction of 1035 residential real property in excess of the value of the work 1036 performed shall not, with intent to defraud the owner, fail or 1037 refuse to perform any work for any 90-day period. 1038 (b)1. It is prima facie evidence Proof that a contractor 1039 received money for the repair, restoration, addition, 1040 improvement, or construction of residential real property and 1041 that the amount received exceeds the value of the work performed 1042 by the contractor when and that: 1043 a.1. The contractor failed to perform any of the work for 1044 which he or she contracted during any 90-day 60-day period; 1045 b.2. The failure to perform any such work during the 90- 1046 day 60-day period was not related to the owner's termination of 1047 the contract or a material breach of the contract by the owner; 1048 and 1049 c.3. The contractor failed to perform for 90 days without 1050 just cause or terminated the contract without proper
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1051 notification to the owner. 1052 2. Proper notification of termination for purposes of this 1053 paragraph must be made by the contractor in the form of a letter 1054 that includes the reason for termination of the contract or the 1055 reason for failure to perform sent via certified mail, return 1056 receipt requested, mailed to the last address of the owner in 1057 the written contracting agreement. If there is no address for 1058 the owner listed in the contracting agreement, or no written 1059 agreement exists, the letter must be mailed to the address where 1060 the work was to be performed or the address listed on the 1061 permit, if applicable. 1062 (c)1. It may be inferred that a contractor does not have 1063 just cause if the contractor fails to perform work, or refund 1064 the money received in excess of the value of the work performed, 1065 within 30 days of receiving a written demand to perform the 1066 work, or refund the money received in excess of the value of the 1067 work performed, from the person who made the payment. 1068 2. Written demand must be made to the contractor in the 1069 form of a letter that includes a demand to perform work, or 1070 refund the money received in excess of the value of the work 1071 performed, sent via certified mail, return receipt requested, 1072 mailed to the address listed in the contracting agreement. If 1073 there is no address for the contractor listed in the contracting 1074 agreement, or no written agreement exists, the letter must be 1075 mailed to the address listed with the Department of Business and
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1076 Professional Regulation for licensing purposes or the local 1077 construction industry licensing board, if applicable ,for an 1078 additional 30-day period after the date of mailing of 1079 notification as specified in paragraph (c), to perform any work 1080 for which he or she contracted, 1081 1082 gives rise to an inference that the money in excess of the value 1083 of the work performed was taken with the intent to defraud. 1084 (c) Notification as contemplated in paragraph (b) consists 1085 of a certified letter, return receipt requested, mailed to the 1086 address of the contractor as listed in the written contracting 1087 agreement. The letter must indicate that the contractor has 1088 failed to perform any work for a 60-day period, that the failure 1089 to perform the work was not the result of the owner's 1090 termination of the contract or a material breach of the contract 1091 by the owner, and that the contractor must recommence 1092 construction within 30 days after the date of mailing of the 1093 letter. If there is no address for the contractor listed in the 1094 written contracting agreement, or no written agreement exists, 1095 the letter must be mailed to the address of the contractor 1096 listed in the building permit application. 1097 (4) Any criminal violation of subsection (2) or subsection 1098 (3) shall be prosecuted in accordance with s. 812.014(1), the 1099 thresholds established in this section, and the following: 1100 (a) The required intent to prove a criminal violation may
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1101 be shown to exist at the time that the contractor appropriated 1102 the money to his or her own use and is not required to be proven 1103 to exist at the time of the taking of the money from the owner 1104 or at the time the owner makes a payment to the contractor. 1105 (b) It may be inferred that a contractor intended to 1106 deprive the owner of the right to the money owed, or deprive the 1107 owner of the benefit from it, and inferred that the contractor 1108 appropriated the money for his or her own use, or to a person 1109 not entitled to the use of the money, if the contractor fails to 1110 refund any portion of the money owed within 30 days after 1111 receiving a written demand for such money from the owner. 1112 (c) In a prosecution for a violation of this section, the 1113 fact that the person so charged intended to return the money 1114 owed is not a defense. 1115 (5) A violation of subsection (2) is a: 1116 (a) Misdemeanor of the first degree, punishable as 1117 provided in s. 775.082 or s. 775.083, if the total money 1118 received is less than $1,000. 1119 (b) Felony of the third degree, punishable as provided in 1120 s. 775.082, s. 775.083, or s. 775.084, if the total money 1121 received is $1,000 or more but less than $20,000. 1122 (c) Felony of the second degree, punishable as provided in 1123 s. 775.082, s. 775.083, or s. 775.084, if the total money 1124 received is $20,000 or more but less than $200,000. 1125 (d) Felony of the first degree, punishable as provided in
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1126 s. 775.082, s. 775.083, or s. 775.084, if the total money 1127 received is $200,000 or more. 1128 (6) A violation of subsection (3) is a: 1129 (a) Misdemeanor of the first degree, punishable as 1130 provided in s. 775.082 or s. 775.083, if the total money 1131 received exceeding the value of the work performed is less than 1132 $1,000. 1133 (b) Felony of the third degree, punishable as provided in 1134 s. 775.082, s. 775.083, or s. 775.084, if the total money 1135 received exceeding the value of the work performed is $1,000 or 1136 more but less than $20,000. 1137 (c) Felony of the second degree, punishable as provided in 1138 s. 775.082, s. 775.083, or s. 775.084, if the total money 1139 received exceeding the value of the work performed is $20,000 or 1140 more but less than $200,000. 1141 (d) Felony of the first degree, punishable as provided in 1142 s. 775.082, s. 775.083, or s. 775.084, if the total money 1143 received exceeding the value of the work performed is $200,000 1144 or more. 1145 (4) Any person who violates any provision of this section 1146 is guilty of theft and shall be prosecuted and punished under s. 1147 812.014. 1148 Section 16. Present subsection (6) of section 489.553, 1149 Florida Statutes, is renumbered as subsection (10) and 1150 subsections (6) through (9) are added to that section to read:
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1151 489.553 Administration of part; registration 1152 qualifications; examination.— 1153 (6) Notwithstanding any other provision of law, a 1154 conviction, or any other adjudication, for a crime more than 5 1155 years before the date the application is received by the 1156 department may not be grounds for denial of registration. For 1157 purposes of this subsection, the term "conviction" means a 1158 determination of guilt that is the result of a plea or trial, 1159 regardless of whether adjudication is withheld. This subsection 1160 does not limit a board from considering an applicant's criminal 1161 history that includes any crime listed in s. 775.21(4)(a)1. or 1162 s. 776.08 at any time only if such criminal history has been 1163 found to relate to the practice of the applicable profession, or 1164 any crime if it has been found to relate to good moral 1165 character. 1166 (7)(a) A person may apply to be registered before his or 1167 her lawful release from confinement or supervision. The 1168 department may not charge an applicant an additional fee for 1169 being confined or under supervision. The department may not deny 1170 an application for registration solely on the basis of the 1171 applicant's current confinement or supervision. 1172 (b) After a registration application is approved, the 1173 department may stay the issuance of registration until the 1174 applicant is lawfully released from confinement or supervision 1175 and the applicant notifies the board of such release. The
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1176 department must verify the applicant's release with the 1177 Department of Corrections, or other applicable authority, before 1178 it registers such applicant. 1179 (c) If an applicant is unable to appear in person due to 1180 his or her confinement or supervision, the department must 1181 permit the applicant to appear by teleconference or video 1182 conference, as appropriate, at any meeting or hearing by the 1183 department concerning his or her application. 1184 (d) If an applicant is confined or under supervision, the 1185 Department of Corrections, or other applicable authority, and 1186 the department shall cooperate and coordinate to facilitate the 1187 appearance of the applicant at a meeting or hearing in person, 1188 by teleconference, or by video conference, as appropriate. 1189 (8) The department shall compile a list of crimes that, if 1190 committed and regardless of adjudication, do not relate to the 1191 practice of the profession or the ability to practice the 1192 profession and do not constitute grounds for denial of 1193 registration. This list shall be made available on the 1194 department's website and be updated annually. Beginning October 1195 1, 2019, and updated quarterly thereafter, the department shall 1196 add to this list such crimes that although reported by an 1197 applicant for registration, were not used as a basis for denial 1198 in the past 2 years. The list must identify the crime reported 1199 for each registration application and the: 1200 (a) Date of conviction or sentencing, whichever is later.
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1201 (b) Adjudication entered. 1202 (9) The department shall compile a list of crimes that 1203 have been used as a basis for denial of registration in the past 1204 2 years, which shall be made available on the department's 1205 website. Beginning October 1, 2019, and updated quarterly 1206 thereafter, the department shall add to this list each crime 1207 used as a basis for denial. For each crime listed, the 1208 department must identify the: 1209 (a) Date of conviction or sentencing, whichever is later. 1210 (b) Adjudication entered. 1211 1212 Such denials shall be available to the public upon request. 1213 Section 17. Subsection (2) of section 500.451, Florida 1214 Statutes, is amended to read: 1215 500.451 Horse meat; offenses.— 1216 (2) A person that violates this section commits a felony 1217 of the third degree, punishable as provided in s. 775.082, s. 1218 775.083, or s. 775.084, except that any person who commits a 1219 violation of this section shall be sentenced to a minimum 1220 mandatory fine of $3,500 and a minimum mandatory period of 1221 incarceration of 1 year. 1222 Section 18. Subsection (1) of section 509.151, Florida 1223 Statutes, is amended to read: 1224 509.151 Obtaining food or lodging with intent to defraud; 1225 penalty.—
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1226 (1) Any person who obtains food, lodging, or other 1227 accommodations having a value of less than $1,000 $300 at any 1228 public food service establishment, or at any transient 1229 establishment, with intent to defraud the operator thereof, 1230 commits is guilty of a misdemeanor of the second degree, 1231 punishable as provided in s. 775.082 or s. 775.083; if such 1232 food, lodging, or other accommodations have a value of $1,000 1233 $300 or more, such person commits is guilty of a felony of the 1234 third degree, punishable as provided in s. 775.082, s. 775.083, 1235 or s. 775.084. 1236 Section 19. Paragraph (a) of subsection (1) and paragraph 1237 (c) of subsection (2) of section 562.11, Florida Statutes, are 1238 amended to read: 1239 562.11 Selling, giving, or serving alcoholic beverages to 1240 person under age 21; providing a proper name; misrepresenting or 1241 misstating age or age of another to induce licensee to serve 1242 alcoholic beverages to person under 21; penalties.— 1243 (1)(a)1. A person may not sell, give, serve, or permit to 1244 be served alcoholic beverages to a person under 21 years of age 1245 or permit a person under 21 years of age to consume such 1246 beverages on the licensed premises. A person who violates this 1247 paragraph subparagraph commits a misdemeanor of the second 1248 degree, punishable as provided in s. 775.082 or s. 775.083. A 1249 person who violates this paragraph subparagraph a second or 1250 subsequent time within 1 year after a prior conviction commits a
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1251 misdemeanor of the first degree, punishable as provided in s. 1252 775.082 or s. 775.083. 1253 2. In addition to any other penalty imposed for a 1254 violation of subparagraph 1., the court may order the Department 1255 of Highway Safety and Motor Vehicles to withhold the issuance 1256 of, or suspend or revoke, the driver license or driving 1257 privilege, as provided in s. 322.057, of any person who violates 1258 subparagraph 1. This subparagraph does not apply to a licensee, 1259 as defined in s. 561.01, who violates subparagraph 1. while 1260 acting within the scope of his or her license or an employee or 1261 agent of a licensee, as defined in s. 561.01, who violates 1262 subparagraph 1. while engaged within the scope of his or her 1263 employment or agency. 1264 3. A court that withholds the issuance of, or suspends or 1265 revokes, the driver license or driving privilege of a person 1266 pursuant to subparagraph 2. may direct the Department of Highway 1267 Safety and Motor Vehicles to issue the person a license for 1268 driving privilege restricted to business purposes only, as 1269 defined in s. 322.271, if he or she is otherwise qualified. 1270 (2) It is unlawful for any person to misrepresent or 1271 misstate his or her age or the age of any other person for the 1272 purpose of inducing any licensee or his or her agents or 1273 employees to sell, give, serve, or deliver any alcoholic 1274 beverages to a person under 21 years of age, or for any person 1275 under 21 years of age to purchase or attempt to purchase
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1276 alcoholic beverages. 1277 (c) In addition to any other penalty imposed for a 1278 violation of this subsection, if a person uses a driver license 1279 or identification card issued by the Department of Highway 1280 Safety and Motor Vehicles in violation of this subsection, the 1281 court: 1282 1. may order the person to participate in public service 1283 or a community work project for a period not to exceed 40 1284 hours.; and 1285 2. Shall direct the Department of Highway Safety and Motor 1286 Vehicles to withhold issuance of, or suspend or revoke, the 1287 person's driver license or driving privilege, as provided in s. 1288 322.056. 1289 Section 20. Subsection (3) of section 562.111, Florida 1290 Statutes, is amended to read: 1291 562.111 Possession of alcoholic beverages by persons under 1292 age 21 prohibited.— 1293 (3) In addition to any other penalty imposed for a 1294 violation of subsection (1), the court shall direct the 1295 Department of Highway Safety and Motor Vehicles to withhold 1296 issuance of, or suspend or revoke, the violator's driver license 1297 or driving privilege, as provided in s. 322.056. 1298 Section 21. Subsection (8) of section 562.27, Florida 1299 Statutes, is amended and subsections (1) through (7) of that 1300 section are republished, to read:
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1301 562.27 Seizure and forfeiture.— 1302 (1) It is unlawful for any person to have in her or his 1303 possession, custody, or control, or to own, make, construct, or 1304 repair, any still, still piping, still apparatus, or still worm, 1305 or any piece or part thereof, designed or adapted for the 1306 manufacture of an alcoholic beverage, or to have in her or his 1307 possession, custody or control any receptacle or container 1308 containing any mash, wort, or wash, or other fermented liquids 1309 whatever capable of being distilled or manufactured into an 1310 alcoholic beverage, unless such possession, custody, control, 1311 ownership, manufacture, construction, or repairing be by or for 1312 a person authorized by law to manufacture such alcoholic 1313 beverage. 1314 (2) It is unlawful for any person to have in her or his 1315 possession, custody, or control any raw materials or substance 1316 intended to be used in the distillation or manufacturing of an 1317 alcoholic beverage unless the person holds a license from the 1318 state authorizing the manufacture of the alcoholic beverage. 1319 (3) The terms "raw material" or "substance" for the 1320 purpose of this chapter shall mean and include, but not be 1321 limited to, any of the following: Any grade or type of sugar, 1322 syrup, or molasses derived from sugarcane, sugar beets, corn, 1323 sorghum, or any other source; starch; potatoes; grain or 1324 cornmeal, corn chops, cracked corn, rye chops, middlings, 1325 shorts, bran, or any other grain derivative; malt; malt sugar or
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1326 malt syrup; oak chips, charred or not charred; yeast; cider; 1327 honey; fruit; grapes; berries; fruit, grape or berry juices or 1328 concentrates; wine; caramel; burnt sugar; gin flavor; Chinese 1329 bean cake or Chinese wine cake; urea; ammonium phosphate, 1330 ammonium carbonate, ammonium sulphate, or any other yeast food; 1331 ethyl acetate or any other ethyl ester; any other material of 1332 the character used in the manufacture of distilled spirits or 1333 any chemical or other material suitable for promoting or 1334 accelerating fermentation; any chemical or material of the 1335 character used in the production of distilled spirits by 1336 chemical reaction; or any combination of such materials or 1337 chemicals. 1338 (4) Any such raw materials, substance, or any still, still 1339 piping, still apparatus, or still worm, or any piece or part 1340 thereof, or any mash, wort, or wash, or other fermented liquid 1341 and the receptacle or container thereof, and any alcoholic 1342 beverage, together with all personal property used to facilitate 1343 the manufacture or production of the alcoholic beverage or to 1344 facilitate the violation of the alcoholic beverage control laws 1345 of this state or the United States, may be seized by the 1346 division or by any sheriff or deputy sheriff and shall be 1347 forfeited to the state. 1348 (5) It shall be unlawful for any person to sell or 1349 otherwise dispose of raw materials or other substances knowing 1350 same are to be used in the distillation or manufacture of an
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1351 alcoholic beverage unless such person receiving same, by 1352 purchase or otherwise, holds a license from the state 1353 authorizing the manufacture of such alcoholic beverage. 1354 (6) Any vehicle, vessel, or aircraft used in the 1355 transportation or removal of or for the deposit or concealment 1356 of any illicit liquor still or stilling apparatus; any mash, 1357 wort, wash, or other fermented liquids capable of being 1358 distilled or manufactured into an alcoholic beverage; or any 1359 alcoholic beverage commonly known and referred to as "moonshine 1360 whiskey" shall be seized and may be forfeited as provided by the 1361 Florida Contraband Forfeiture Act. Any sheriff, deputy sheriff, 1362 employee of the division, or police officer may seize any of the 1363 vehicles, vessels, or conveyances, and the same may be forfeited 1364 as provided by law. 1365 (7) The finding of any still, still piping, still 1366 apparatus, or still worm, or any piece or part thereof, or any 1367 mash, wort, or wash or other fermented liquids in the dwelling 1368 house or place of business, or so near thereto as to lead to the 1369 reasonable belief that they are within the possession, custody, 1370 or control of the occupants of the dwelling house or place of 1371 business, shall be prima facie evidence of a violation of this 1372 section by the occupants of the dwelling house or place of 1373 business. 1374 (8) Any person violating any provisions of this section of 1375 the law commits shall be guilty of a misdemeanor felony of the
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1376 second third degree, punishable as provided in s. 775.082 or, s. 1377 775.083, or s. 775.084. 1378 Section 22. Subsections (1) and (2) of section 562.451, 1379 Florida Statutes, are amended to read: 1380 562.451 Moonshine whiskey; ownership, possession, or 1381 control prohibited; penalties; rule of evidence.— 1382 (1) Any person who owns or has in her or his possession or 1383 under her or his control less than 1 gallon of liquor, as 1384 defined in the Beverage Law, which was not made or manufactured 1385 in accordance with the laws in effect at the time when and place 1386 where the same was made or manufactured commits shall be guilty 1387 of a misdemeanor of the second degree, punishable as provided in 1388 s. 775.082 or s. 775.083. 1389 (2) Any person who owns or has in her or his possession or 1390 under her or his control 1 gallon or more of liquor, as defined 1391 in the Beverage Law, which was not made or manufactured in 1392 accordance with the laws in effect at the time when and place 1393 where the same was made or manufactured commits shall be guilty 1394 of a misdemeanor felony of the first third degree, punishable as 1395 provided in s. 775.082 or, s. 775.083, or s. 775.084. 1396 Section 23. Subsections (1), (2), and (5) of section 1397 569.11, Florida Statutes, are amended to read: 1398 569.11 Possession, misrepresenting age or military service 1399 to purchase, and purchase of tobacco products by persons under 1400 18 years of age prohibited; penalties; jurisdiction; disposition
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1401 of fines.— 1402 (1) It is unlawful for any person under 18 years of age to 1403 knowingly possess any tobacco product. Any person under 18 years 1404 of age who violates the provisions of this subsection commits a 1405 noncriminal violation as provided in s. 775.08(3), punishable 1406 by: 1407 (a) For a first violation, 16 hours of community service 1408 or, instead of community service, a $25 fine. In addition, the 1409 person must attend a school-approved anti-tobacco program, if 1410 locally available; or 1411 (b) For a second or subsequent violation within 12 weeks 1412 of the first violation, a $25 fine; or 1413 (c) For a third or subsequent violation within 12 weeks of 1414 the first violation, the court must direct the Department of 1415 Highway Safety and Motor Vehicles to withhold issuance of or 1416 suspend or revoke the person's driver license or driving 1417 privilege, as provided in s. 322.056. 1418 1419 Any second or subsequent violation not within the 12-week time 1420 period after the first violation is punishable as provided for a 1421 first violation. 1422 (2) It is unlawful for any person under 18 years of age to 1423 misrepresent his or her age or military service for the purpose 1424 of inducing a dealer or an agent or employee of the dealer to 1425 sell, give, barter, furnish, or deliver any tobacco product, or
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1426 to purchase, or attempt to purchase, any tobacco product from a 1427 person or a vending machine. Any person under 18 years of age 1428 who violates a provision of this subsection commits a 1429 noncriminal violation as provided in s. 775.08(3), punishable 1430 by: 1431 (a) For a first violation, 16 hours of community service 1432 or, instead of community service, a $25 fine and, in addition, 1433 the person must attend a school-approved anti-tobacco program, 1434 if available; or 1435 (b) For a second or subsequent violation within 12 weeks 1436 of the first violation, a $25 fine; or 1437 (c) For a third or subsequent violation within 12 weeks of 1438 the first violation, the court must direct the Department of 1439 Highway Safety and Motor Vehicles to withhold issuance of or 1440 suspend or revoke the person's driver license or driving 1441 privilege, as provided in s. 322.056. 1442 1443 Any second or subsequent violation not within the 12-week time 1444 period after the first violation is punishable as provided for a 1445 first violation. 1446 (5)(a) If a person under 18 years of age is found by the 1447 court to have committed a noncriminal violation under this 1448 section and that person has failed to complete community 1449 service, pay the fine as required by paragraph (1)(a) or 1450 paragraph (2)(a), or attend a school-approved anti-tobacco
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1451 program, if locally available, the court may must direct the 1452 Department of Highway Safety and Motor Vehicles to withhold 1453 issuance of or suspend the driver license or driving privilege 1454 of that person for a period of 30 consecutive days. 1455 (b) If a person under 18 years of age is found by the 1456 court to have committed a noncriminal violation under this 1457 section and that person has failed to pay the applicable fine as 1458 required by paragraph (1)(b) or paragraph (2)(b), the court may 1459 must direct the Department of Highway Safety and Motor Vehicles 1460 to withhold issuance of or suspend the driver license or driving 1461 privilege of that person for a period of 45 consecutive days. 1462 Section 24. Section 713.69, Florida Statutes, is amended 1463 to read: 1464 713.69 Unlawful to remove property upon which lien has 1465 accrued.—It is unlawful for any person to remove any property 1466 upon which a lien has accrued under the provisions of s. 713.68 1467 from any hotel, apartment house, roominghouse, lodginghouse, 1468 boardinghouse or tenement house without first making full 1469 payment to the person operating or conducting the same of all 1470 sums due and payable for such occupancy or without first having 1471 the written consent of such person so conducting or operating 1472 such place to so remove such property. Any person violating the 1473 provisions of this section shall, if the property removed in 1474 violation hereof be of the value of less than $1,000 $50 or 1475 less, commits be guilty of a misdemeanor of the second degree,
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1476 punishable as provided in s. 775.082 or s. 775.083; and if the 1477 property so removed should be valued at of greater value than 1478 $1,000 or more $50 then such person commits shall be guilty of a 1479 felony of the third degree, punishable as provided in s. 1480 775.082, s. 775.083, or s. 775.084. 1481 Section 25. Paragraphs (a) and (d) of subsection (9) of 1482 section 775.082, Florida Statutes, are amended to read: 1483 775.082 Penalties; applicability of sentencing structures; 1484 mandatory minimum sentences for certain reoffenders previously 1485 released from prison.— 1486 (9)(a)1. "Prison releasee reoffender" means any defendant 1487 who commits, or attempts to commit: 1488 a. Treason; 1489 b. Murder; 1490 c. Manslaughter; 1491 d. Sexual battery; 1492 e. Carjacking; 1493 f. Home-invasion robbery; 1494 g. Robbery; 1495 h. Arson; 1496 i. Kidnapping; 1497 j. Aggravated assault with a deadly weapon; 1498 k. Aggravated battery; 1499 l. Aggravated stalking; 1500 m. Aircraft piracy;
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1501 n. Unlawful throwing, placing, or discharging of a 1502 destructive device or bomb; 1503 o. Any felony that involves the use or threat of physical 1504 force or violence against an individual; 1505 p. Armed burglary; 1506 q. Burglary of a dwelling or burglary of an occupied 1507 structure; or 1508 r. Any felony violation of s. 790.07, s. 800.04, s. 1509 827.03, s. 827.071, or s. 847.0135(5); 1510 1511 within 3 years after being released from a state correctional 1512 facility operated by the Department of Corrections or a private 1513 vendor, a county detention facility following incarceration for 1514 an offense for which the sentence pronounced was a prison 1515 sentence, or within 3 years after being released from a 1516 correctional institution of another state, the District of 1517 Columbia, the United States, any possession or territory of the 1518 United States, or any foreign jurisdiction, following 1519 incarceration for an offense for which the sentence is 1520 punishable by more than 1 year in this state. 1521 2. "Prison releasee reoffender" also means any defendant 1522 who commits or attempts to commit any offense listed in sub- 1523 subparagraphs (a)1.a.-r. while the defendant was serving a 1524 prison sentence or on escape status from a state correctional 1525 facility operated by the Department of Corrections or a private
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1526 vendor or while the defendant was on escape status from a 1527 correctional institution of another state, the District of 1528 Columbia, the United States, any possession or territory of the 1529 United States, or any foreign jurisdiction, following 1530 incarceration for an offense for which the sentence is 1531 punishable by more than 1 year in this state. 1532 3. If the state attorney determines that a defendant is a 1533 prison releasee reoffender as defined in subparagraph 1., the 1534 state attorney may seek to have the court sentence the defendant 1535 as a prison releasee reoffender. Upon proof from the state 1536 attorney that establishes by a preponderance of the evidence 1537 that a defendant is a prison releasee reoffender as defined in 1538 this section, such defendant is not eligible for sentencing 1539 under the sentencing guidelines and must be sentenced as 1540 follows: 1541 a. For a felony punishable by life, by a term of 1542 imprisonment for life; 1543 b. For a felony of the first degree, by a term of 1544 imprisonment of 30 years; 1545 c. For a felony of the second degree, by a term of 1546 imprisonment of 15 years; and 1547 d. For a felony of the third degree, by a term of 1548 imprisonment of 5 years. 1549 (d)1. It is the intent of the Legislature that offenders 1550 previously released from prison or a county detention facility
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1551 following incarceration for an offense for which the sentence 1552 pronounced was a prison sentence who meet the criteria in 1553 paragraph (a) be punished to the fullest extent of the law and 1554 as provided in this subsection, unless the state attorney 1555 determines that extenuating circumstances exist which preclude 1556 the just prosecution of the offender, including whether the 1557 victim recommends that the offender not be sentenced as provided 1558 in this subsection. 1559 2. For every case in which the offender meets the criteria 1560 in paragraph (a) and does not receive the mandatory minimum 1561 prison sentence, the state attorney must explain the sentencing 1562 deviation in writing and place such explanation in the case file 1563 maintained by the state attorney. 1564 Section 26. Paragraph (f) is added to subsection (2) of 1565 section 784.046, Florida Statutes, to read: 1566 784.046 Action by victim of repeat violence, sexual 1567 violence, or dating violence for protective injunction; dating 1568 violence investigations, notice to victims, and reporting; 1569 pretrial release violations; public records exemption.— 1570 (2) There is created a cause of action for an injunction 1571 for protection in cases of repeat violence, there is created a 1572 separate cause of action for an injunction for protection in 1573 cases of dating violence, and there is created a separate cause 1574 of action for an injunction for protection in cases of sexual 1575 violence.
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1576 (f) Notwithstanding any other law, attorney fees may not 1577 be awarded in any proceeding under this section. 1578 Section 27. Paragraph (d) of subsection (1) of section 1579 784.048, Florida Statutes, is amended, and subsections (2), (3), 1580 (4), (5), and (7) of that section are republished, to read: 1581 784.048 Stalking; definitions; penalties.— 1582 (1) As used in this section, the term: 1583 (d) "Cyberstalk" means: 1584 1. To engage in a course of conduct to communicate, or to 1585 cause to be communicated, words, images, or language by or 1586 through the use of electronic mail or electronic communication, 1587 directed at a specific person; or 1588 2. To access, or attempt to access the online accounts or 1589 Internet-connected home electronic systems of another person 1590 without that person's permission, 1591 1592 causing substantial emotional distress to that person and 1593 serving no legitimate purpose. 1594 (2) A person who willfully, maliciously, and repeatedly 1595 follows, harasses, or cyberstalks another person commits the 1596 offense of stalking, a misdemeanor of the first degree, 1597 punishable as provided in s. 775.082 or s. 775.083. 1598 (3) A person who willfully, maliciously, and repeatedly 1599 follows, harasses, or cyberstalks another person and makes a 1600 credible threat to that person commits the offense of aggravated
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1601 stalking, a felony of the third degree, punishable as provided 1602 in s. 775.082, s. 775.083, or s. 775.084. 1603 (4) A person who, after an injunction for protection 1604 against repeat violence, sexual violence, or dating violence 1605 pursuant to s. 784.046, or an injunction for protection against 1606 domestic violence pursuant to s. 741.30, or after any other 1607 court-imposed prohibition of conduct toward the subject person 1608 or that person's property, knowingly, willfully, maliciously, 1609 and repeatedly follows, harasses, or cyberstalks another person 1610 commits the offense of aggravated stalking, a felony of the 1611 third degree, punishable as provided in s. 775.082, s. 775.083, 1612 or s. 775.084. 1613 (5) A person who willfully, maliciously, and repeatedly 1614 follows, harasses, or cyberstalks a child under 16 years of age 1615 commits the offense of aggravated stalking, a felony of the 1616 third degree, punishable as provided in s. 775.082, s. 775.083, 1617 or s. 775.084. 1618 (7) A person who, after having been sentenced for a 1619 violation of s. 794.011, s. 800.04, or s. 847.0135(5) and 1620 prohibited from contacting the victim of the offense under s. 1621 921.244, willfully, maliciously, and repeatedly follows, 1622 harasses, or cyberstalks the victim commits the offense of 1623 aggravated stalking, a felony of the third degree, punishable as 1624 provided in s. 775.082, s. 775.083, or s. 775.084. 1625 Section 28. Paragraph (d) is added to subsection (2) of
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1626 section 784.0485, Florida Statutes, to read: 1627 784.0485 Stalking; injunction; powers and duties of court 1628 and clerk; petition; notice and hearing; temporary injunction; 1629 issuance of injunction; statewide verification system; 1630 enforcement.— 1631 (2) 1632 (d) Notwithstanding any other law, attorney fees may not 1633 be awarded in any proceeding under this section. 1634 Section 29. Section 784.049, Florida Statutes, is amended 1635 to read: 1636 784.049 Sexual cyberharassment.— 1637 (1) The Legislature finds that: 1638 (a) A person depicted in a sexually explicit image taken 1639 with the person's consent may retain has a reasonable 1640 expectation that the image will remain private despite sharing 1641 the image with another person, such as an intimate partner. 1642 (b) It is becoming a common practice for persons to 1643 publish a sexually explicit image of another to Internet 1644 websites or to disseminate such an image through electronic 1645 means without the depicted person's consent, contrary to the 1646 depicted person's reasonable expectation of privacy, for no 1647 legitimate purpose, with the intent of causing substantial 1648 emotional distress to the depicted person. 1649 (c) When such images are published on Internet websites, 1650 the images they are able to be viewed indefinitely by persons
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1651 worldwide and are able to be easily reproduced and shared. 1652 (d) The publication or dissemination of such images 1653 through the use of on Internet websites or electronic means 1654 creates a permanent record of the depicted person's private 1655 nudity or private sexually explicit conduct. 1656 (e) The existence of such images on Internet websites or 1657 the dissemination of such images without the consent of all 1658 parties depicted in the images causes those depicted in such 1659 images significant psychological harm. 1660 (f) Safeguarding the psychological well-being and privacy 1661 interests of persons depicted in such images is compelling. 1662 (2) As used in this section, the term: 1663 (a) "Image" includes, but is not limited to, any 1664 photograph, picture, motion picture, film, video, or 1665 representation. 1666 (b) "Personal identification information" means any 1667 information that identifies the individual, and includes, but is 1668 not limited to, any name, postal or electronic email address, 1669 telephone number, social security number, date of birth, or any 1670 unique physical representation has the same meaning as provided 1671 in s. 817.568. 1672 (c) "Sexually cyberharass" means to publish to an Internet 1673 website or disseminate through electronic means to another 1674 person a sexually explicit image of a person that contains or 1675 conveys the personal identification information of the depicted
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1676 person to an Internet website without the depicted person's 1677 consent, contrary to the depicted person's reasonable 1678 expectation that the image would remain private, for no 1679 legitimate purpose, with the intent of causing substantial 1680 emotional distress to the depicted person. Evidence that the 1681 depicted person sent a sexually explicit image to another person 1682 does not, on its own, eliminate his or her reasonable 1683 expectation of privacy for that image. 1684 (d) "Sexually explicit image" means any image depicting 1685 nudity, as defined in s. 847.001, or depicting a person engaging 1686 in sexual conduct, as defined in s. 847.001. 1687 (3)(a) Except as provided in paragraph (b), a person who 1688 willfully and maliciously sexually cyberharasses another person 1689 commits a misdemeanor of the first degree, punishable as 1690 provided in s. 775.082 or s. 775.083. 1691 (b) A person who has one prior conviction for sexual 1692 cyberharassment and who commits a second or subsequent sexual 1693 cyberharassment commits a felony of the third degree, punishable 1694 as provided in s. 775.082, s. 775.083, or s. 775.084. 1695 (4)(a) A law enforcement officer may arrest, without a 1696 warrant, any person that he or she has probable cause to believe 1697 has violated this section. 1698 (b) Upon proper affidavits being made, a search warrant 1699 may be issued to further investigate violations of this section, 1700 including warrants issued to search a private dwelling.
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1701 (5) An aggrieved person may initiate a civil action 1702 against a person who violates this section to obtain all 1703 appropriate relief in order to prevent or remedy a violation of 1704 this section, including the following: 1705 (a) Injunctive relief. 1706 (b) Monetary damages to include $5,000 or actual damages 1707 incurred as a result of a violation of this section, whichever 1708 is greater. 1709 (c) Reasonable attorney fees and costs. 1710 (6) The criminal and civil penalties of this section do 1711 not apply to: 1712 (a) A provider of an interactive computer service as 1713 defined in 47 U.S.C. s. 230(f), information service as defined 1714 in 47 U.S.C. s. 153, or communications service as defined in s. 1715 202.11, that provides the transmission, storage, or caching of 1716 electronic communications or messages of others; other related 1717 telecommunications or commercial mobile radio service; or 1718 content provided by another person; or 1719 (b) A law enforcement officer, as defined in s. 943.10, or 1720 any local, state, federal, or military law enforcement agency, 1721 that publishes a sexually explicit image in connection with the 1722 performance of his or her duties as a law enforcement officer, 1723 or law enforcement agency. 1724 (7) A violation of this section is committed within this 1725 state if any conduct that is an element of the offense, or any
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1726 harm to the depicted person resulting from the offense, occurs 1727 within this state. 1728 Section 30. Subsection (1) of section 790.052, Florida 1729 Statutes, is amended to read: 1730 790.052 Carrying concealed firearms; off-duty law 1731 enforcement officers.— 1732 (1)(a) All persons holding active certifications from the 1733 Criminal Justice Standards and Training Commission as law 1734 enforcement officers or correctional officers as defined in s. 1735 943.10(1), (2), (6), (7), (8), or (9) shall have the right to 1736 carry, on or about their persons, concealed firearms, during 1737 off-duty hours, at the discretion of their superior officers, 1738 and may perform those law enforcement functions that they 1739 normally perform during duty hours, utilizing their weapons in a 1740 manner which is reasonably expected of on-duty officers in 1741 similar situations. 1742 (b) All persons holding active certifications from the 1743 Criminal Justice Standards and Training Commission as law 1744 enforcement officers or correctional officers as defined in s. 1745 943.10(1), (2), (6), (7), (8), or (9), meet the definition of 1746 "qualified law enforcement officer" in 18 U.S.C. s. 926B(c). 1747 (c) All persons who held active certifications from the 1748 Criminal Justice Standards and Training Commission as law 1749 enforcement officers or correctional officers as defined in s. 1750 943.10(1), (2), (6), (7), (8), or (9) while working for an
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1751 employing agency, as defined in s. 943.10(4), but have separated 1752 from service under the conditions set forth in 18 U.S.C. s. 1753 926C(c), meet the definition of "qualified retired law 1754 enforcement officer." However, 1755 (d) Nothing in This section does not subsection shall be 1756 construed to limit the right of a law enforcement officer, 1757 correctional officer, or correctional probation officer to carry 1758 a concealed firearm off duty as a private citizen under the 1759 exemption provided in s. 790.06 that allows a law enforcement 1760 officer, correctional officer, or correctional probation officer 1761 as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9) to 1762 carry a concealed firearm without a concealed weapon or firearm 1763 license. The appointing or employing agency or department of an 1764 officer carrying a concealed firearm as a private citizen under 1765 s. 790.06 shall not be liable for the use of the firearm in such 1766 capacity. Nothing herein limits the authority of the appointing 1767 or employing agency or department from establishing policies 1768 limiting law enforcement officers or correctional officers from 1769 carrying concealed firearms during off-duty hours in their 1770 capacity as appointees or employees of the agency or department. 1771 Section 31. Subsections (5) and (10) of section 790.22, 1772 Florida Statutes, are amended to read: 1773 790.22 Use of BB guns, air or gas-operated guns, or 1774 electric weapons or devices by minor under 16; limitation; 1775 possession of firearms by minor under 18 prohibited; penalties.—
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1776 (5)(a) A minor who violates subsection (3) commits a 1777 misdemeanor of the first degree; for a first offense, may serve 1778 a period of detention of up to 3 days in a secure detention 1779 facility; and, in addition to any other penalty provided by law, 1780 shall be required to perform 100 hours of community service; 1781 and: 1782 1. If the minor is eligible by reason of age for a driver 1783 license or driving privilege, the court may shall direct the 1784 Department of Highway Safety and Motor Vehicles to revoke or to 1785 withhold issuance of the minor's driver license or driving 1786 privilege for up to 1 year. 1787 2. If the minor's driver license or driving privilege is 1788 under suspension or revocation for any reason, the court may 1789 shall direct the Department of Highway Safety and Motor Vehicles 1790 to extend the period of suspension or revocation by an 1791 additional period of up to 1 year. 1792 3. If the minor is ineligible by reason of age for a 1793 driver license or driving privilege, the court may shall direct 1794 the Department of Highway Safety and Motor Vehicles to withhold 1795 issuance of the minor's driver license or driving privilege for 1796 up to 1 year after the date on which the minor would otherwise 1797 have become eligible. 1798 (b) For a second or subsequent offense, a minor who 1799 violates subsection (3) commits a felony of the third degree and 1800 shall serve a period of detention of up to 15 days in a secure
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1801 detention facility and shall be required to perform not less 1802 than 100 nor more than 250 hours of community service, and: 1803 1. If the minor is eligible by reason of age for a driver 1804 license or driving privilege, the court may shall direct the 1805 Department of Highway Safety and Motor Vehicles to revoke or to 1806 withhold issuance of the minor's driver license or driving 1807 privilege for up to 2 years. 1808 2. If the minor's driver license or driving privilege is 1809 under suspension or revocation for any reason, the court may 1810 shall direct the Department of Highway Safety and Motor Vehicles 1811 to extend the period of suspension or revocation by an 1812 additional period of up to 2 years. 1813 3. If the minor is ineligible by reason of age for a 1814 driver license or driving privilege, the court may shall direct 1815 the Department of Highway Safety and Motor Vehicles to withhold 1816 issuance of the minor's driver license or driving privilege for 1817 up to 2 years after the date on which the minor would otherwise 1818 have become eligible. 1819 1820 For the purposes of this subsection, community service shall be 1821 performed, if possible, in a manner involving a hospital 1822 emergency room or other medical environment that deals on a 1823 regular basis with trauma patients and gunshot wounds. 1824 (10) If a minor is found to have committed an offense 1825 under subsection (9), the court shall impose the following
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1826 penalties in addition to any penalty imposed under paragraph 1827 (9)(a) or paragraph (9)(b): 1828 (a) For a first offense: 1829 1. If the minor is eligible by reason of age for a driver 1830 license or driving privilege, the court may shall direct the 1831 Department of Highway Safety and Motor Vehicles to revoke or to 1832 withhold issuance of the minor's driver license or driving 1833 privilege for up to 1 year. 1834 2. If the minor's driver license or driving privilege is 1835 under suspension or revocation for any reason, the court may 1836 shall direct the Department of Highway Safety and Motor Vehicles 1837 to extend the period of suspension or revocation by an 1838 additional period for up to 1 year. 1839 3. If the minor is ineligible by reason of age for a 1840 driver license or driving privilege, the court may shall direct 1841 the Department of Highway Safety and Motor Vehicles to withhold 1842 issuance of the minor's driver license or driving privilege for 1843 up to 1 year after the date on which the minor would otherwise 1844 have become eligible. 1845 (b) For a second or subsequent offense: 1846 1. If the minor is eligible by reason of age for a driver 1847 license or driving privilege, the court may shall direct the 1848 Department of Highway Safety and Motor Vehicles to revoke or to 1849 withhold issuance of the minor's driver license or driving 1850 privilege for up to 2 years.
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1851 2. If the minor's driver license or driving privilege is 1852 under suspension or revocation for any reason, the court may 1853 shall direct the Department of Highway Safety and Motor Vehicles 1854 to extend the period of suspension or revocation by an 1855 additional period for up to 2 years. 1856 3. If the minor is ineligible by reason of age for a 1857 driver license or driving privilege, the court may shall direct 1858 the Department of Highway Safety and Motor Vehicles to withhold 1859 issuance of the minor's driver license or driving privilege for 1860 up to 2 years after the date on which the minor would otherwise 1861 have become eligible. 1862 Section 32. Section 800.09, Florida Statutes, is amended 1863 to read: 1864 800.09 Lewd or lascivious exhibition in the presence of an 1865 employee.— 1866 (1) As used in this section, the term: 1867 (a) "Employee" means: 1868 1. Any person employed by or performing contractual 1869 services for a public or private entity operating a state 1870 correctional institution or private correctional facility; or 1871 2. Any person employed by or performing contractual 1872 services for the corporation operating the prison industry 1873 enhancement programs or the correctional work programs under 1874 part II of chapter 946;. The term also includes 1875 3. Any person who is a parole examiner with the Florida
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1876 Commission on Offender Review; or 1877 4. Any person employed at or performing contractual 1878 services for a county detention facility. 1879 (b) "Facility" means a state correctional institution as 1880 defined in s. 944.02, or a private correctional facility as 1881 defined in s. 944.710, or a county detention facility as defined 1882 in s. 951.23. 1883 (2)(a) A person who is detained in a facility may not: 1884 1. Intentionally masturbate; 1885 2. Intentionally expose the genitals in a lewd or 1886 lascivious manner; or 1887 3. Intentionally commit any other sexual act that does not 1888 involve actual physical or sexual contact with the victim, 1889 including, but not limited to, sadomasochistic abuse, sexual 1890 bestiality, or the simulation of any act involving sexual 1891 activity, 1892 1893 in the presence of a person he or she knows or reasonably should 1894 know is an employee. 1895 (b) A person who violates paragraph (a) commits lewd or 1896 lascivious exhibition in the presence of an employee, a felony 1897 of the third degree, punishable as provided in s. 775.082, s. 1898 775.083, or s. 775.084. 1899 Section 33. Subsection (7) of section 806.13, Florida 1900 Statutes, is amended, and subsection (8) of that section is
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1901 republished, to read: 1902 806.13 Criminal mischief; penalties; penalty for minor.— 1903 (7) In addition to any other penalty provided by law, if a 1904 minor is found to have committed a delinquent act under this 1905 section for placing graffiti on any public property or private 1906 property, and: 1907 (a) The minor is eligible by reason of age for a driver 1908 license or driving privilege, the court may shall direct the 1909 Department of Highway Safety and Motor Vehicles to revoke or 1910 withhold issuance of the minor's driver license or driving 1911 privilege for not more than 1 year. 1912 (b) The minor's driver license or driving privilege is 1913 under suspension or revocation for any reason, the court may 1914 shall direct the Department of Highway Safety and Motor Vehicles 1915 to extend the period of suspension or revocation by an 1916 additional period of not more than 1 year. 1917 (c) The minor is ineligible by reason of age for a driver 1918 license or driving privilege, the court may shall direct the 1919 Department of Highway Safety and Motor Vehicles to withhold 1920 issuance of the minor's driver license or driving privilege for 1921 not more than 1 year after the date on which he or she would 1922 otherwise have become eligible. 1923 (8) A minor whose driver license or driving privilege is 1924 revoked, suspended, or withheld under subsection (7) may elect 1925 to reduce the period of revocation, suspension, or withholding
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1926 by performing community service at the rate of 1 day for each 1927 hour of community service performed. In addition, if the court 1928 determines that due to a family hardship, the minor's driver 1929 license or driving privilege is necessary for employment or 1930 medical purposes of the minor or a member of the minor's family, 1931 the court shall order the minor to perform community service and 1932 reduce the period of revocation, suspension, or withholding at 1933 the rate of 1 day for each hour of community service performed. 1934 As used in this subsection, the term "community service" means 1935 cleaning graffiti from public property. 1936 Section 34. Paragraphs (c), (d), and (e) of subsection (2) 1937 and paragraphs (a), (b), and (c) of subsection (3) of section 1938 812.014, Florida Statutes, are amended to read: 1939 812.014 Theft.— 1940 (2) 1941 (c) It is grand theft of the third degree and a felony of 1942 the third degree, punishable as provided in s. 775.082, s. 1943 775.083, or s. 775.084, if the property stolen is: 1944 1. Valued at $1,000 $300 or more, but less than $5,000. 1945 2. Valued at $5,000 or more, but less than $10,000. 1946 3. Valued at $10,000 or more, but less than $20,000. 1947 4. A will, codicil, or other testamentary instrument. 1948 5. A firearm. 1949 6. A motor vehicle, except as provided in paragraph (a). 1950 7. Any commercially farmed animal, including any animal of
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1951 the equine, avian, bovine, or swine class or other grazing 1952 animal; a bee colony of a registered beekeeper; and aquaculture 1953 species raised at a certified aquaculture facility. If the 1954 property stolen is a commercially farmed animal, including an 1955 animal of the equine, avian, bovine, or swine class or other 1956 grazing animal; a bee colony of a registered beekeeper; or an 1957 aquaculture species raised at a certified aquaculture facility, 1958 a $10,000 fine shall be imposed. 1959 8. Any fire extinguisher. 1960 9. Any amount of citrus fruit consisting of 2,000 or more 1961 individual pieces of fruit. 1962 10. Taken from a designated construction site identified 1963 by the posting of a sign as provided for in s. 810.09(2)(d). 1964 11. Any stop sign. 1965 12. Anhydrous ammonia. 1966 13. Any amount of a controlled substance as defined in s. 1967 893.02. Notwithstanding any other law, separate judgments and 1968 sentences for theft of a controlled substance under this 1969 subparagraph and for any applicable possession of controlled 1970 substance offense under s. 893.13 or trafficking in controlled 1971 substance offense under s. 893.135 may be imposed when all such 1972 offenses involve the same amount or amounts of a controlled 1973 substance. 1974 14. A utility service under s. 812.14. 1975
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1976 However, if the property is stolen within a county that is 1977 subject to a state of emergency declared by the Governor under 1978 chapter 252, the property is stolen after the declaration of 1979 emergency is made, and the perpetration of the theft is 1980 facilitated by conditions arising from the emergency, the 1981 offender commits a felony of the second degree, punishable as 1982 provided in s. 775.082, s. 775.083, or s. 775.084, if the 1983 property is valued at $5,000 or more, but less than $10,000, as 1984 provided under subparagraph 2., or if the property is valued at 1985 $10,000 or more, but less than $20,000, as provided under 1986 subparagraph 3. As used in this paragraph, the term "conditions 1987 arising from the emergency" means civil unrest, power outages, 1988 curfews, voluntary or mandatory evacuations, or a reduction in 1989 the presence of or the response time for first responders or 1990 homeland security personnel. For purposes of sentencing under 1991 chapter 921, a felony offense that is reclassified under this 1992 paragraph is ranked one level above the ranking under s. 1993 921.0022 or s. 921.0023 of the offense committed. 1994 (d) It is grand theft of the third degree and a felony of 1995 the third degree, punishable as provided in s. 775.082, s. 1996 775.083, or s. 775.084, if the property stolen is valued at 1997 $1,000 $100 or more, but less than $5,000 $300, and is taken 1998 from a dwelling as defined in s. 810.011(2) or from the 1999 unenclosed curtilage of a dwelling pursuant to s. 810.09(1). 2000 (e) Except as provided in paragraph (d), if the property
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2001 stolen is valued at $500 $100 or more, but less than $1,000 2002 $300, the offender commits petit theft of the first degree, 2003 punishable as a misdemeanor of the first degree, as provided in 2004 s. 775.082 or s. 775.083. 2005 (3)(a) Theft of any property not specified in subsection 2006 (2) is petit theft of the second degree and a misdemeanor of the 2007 second degree, punishable as provided in s. 775.082 or s. 2008 775.083, and as provided in subsection (5), as applicable. 2009 (b) A person who commits petit theft and who has 2010 previously been convicted of any theft commits a misdemeanor of 2011 the first degree, punishable as provided in s. 775.082 or s. 2012 775.083. 2013 (c) A person who commits petit theft and who has 2014 previously been convicted two or more times of any theft commits 2015 a felony of the third degree, punishable as provided in s. 2016 775.082 or s. 775.083. 2017 Section 35. Subsection (8) of section 812.015, Florida 2018 Statutes, is amended to read: 2019 812.015 Retail and farm theft; transit fare evasion; 2020 mandatory fine; alternative punishment; detention and arrest; 2021 exemption from liability for false arrest; resisting arrest; 2022 penalties.— 2023 (8) Except as provided in subsection (9), a person who 2024 commits retail theft commits a felony of the third degree, 2025 punishable as provided in s. 775.082, s. 775.083, or s. 775.084,
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2026 if the property stolen is valued at $1,000 $300 or more, and the 2027 person: 2028 (a) Individually, or in concert with one or more other 2029 persons, coordinates the activities of one or more individuals 2030 in committing the offense, in which case the amount of each 2031 individual theft is aggregated to determine the value of the 2032 property stolen; 2033 (b) Individually, or in concert with one or more persons, 2034 commits theft of any merchandise from one or more locations over 2035 a 30-day period the aggregate value of which exceeds $1,000 2036 Commits theft from more than one location within a 48-hour 2037 period, in which case the amount of each individual theft is 2038 aggregated to determine the value of the property stolen; 2039 (c) Acts in concert with one or more other individuals 2040 within one or more establishments to distract the merchant, 2041 merchant's employee, or law enforcement officer in order to 2042 carry out the offense, or acts in other ways to coordinate 2043 efforts to carry out the offense; or 2044 (d) Commits the offense through the purchase of 2045 merchandise in a package or box that contains merchandise other 2046 than, or in addition to, the merchandise purported to be 2047 contained in the package or box. 2048 Section 36. Section 812.0155, Florida Statutes, is amended 2049 to read: 2050 812.0155 Driver license suspension as an alternative
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2051 sentence for a person under 18 years of age Suspension of driver 2052 license following an adjudication of guilt for theft.— 2053 (1) Except as provided in subsections (2) and (3), the 2054 court may order the suspension of the driver license of each 2055 person adjudicated guilty of any misdemeanor violation of s. 2056 812.014 or s. 812.015, regardless of the value of the property 2057 stolen. Upon ordering the suspension of the driver license of 2058 the person adjudicated guilty, the court shall forward the 2059 driver license of the person adjudicated guilty to the 2060 Department of Highway Safety and Motor Vehicles in accordance 2061 with s. 322.25. 2062 (a) The first suspension of a driver license under this 2063 subsection shall be for a period of up to 6 months. 2064 (b) A second or subsequent suspension of a driver license 2065 under this subsection shall be for 1 year. 2066 (1)(2) The court may revoke, suspend, or withhold issuance 2067 of a driver license of a person less than 18 years of age who 2068 violates s. 812.014 or s. 812.015 as an alternative to 2069 sentencing the person to: 2070 (a) Probation as defined in s. 985.03 or commitment to the 2071 Department of Juvenile Justice, if the person is adjudicated 2072 delinquent for such violation and has not previously been 2073 convicted of or adjudicated delinquent for any criminal offense, 2074 regardless of whether adjudication was withheld. 2075 (b) Probation as defined in s. 985.03, commitment to the
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2076 Department of Juvenile Justice, probation as defined in chapter 2077 948, community control, or incarceration, if the person is 2078 convicted as an adult of such violation and has not previously 2079 been convicted of or adjudicated delinquent for any criminal 2080 offense, regardless of whether adjudication was withheld. 2081 (2)(3) As used in this subsection, the term "department" 2082 means the Department of Highway Safety and Motor Vehicles. A 2083 court that revokes, suspends, or withholds issuance of a driver 2084 license under subsection (1)(2) shall: 2085 (a) If the person is eligible by reason of age for a 2086 driver license or driving privilege, direct the department to 2087 revoke or withhold issuance of the person's driver license or 2088 driving privilege for not less than 6 months and not more than 1 2089 year; 2090 (b) If the person's driver license is under suspension or 2091 revocation for any reason, direct the department to extend the 2092 period of suspension or revocation by not less than 6 months and 2093 not more than 1 year; or 2094 (c) If the person is ineligible by reason of age for a 2095 driver license or driving privilege, direct the department to 2096 withhold issuance of the person's driver license or driving 2097 privilege for not less than 6 months and not more than 1 year 2098 after the date on which the person would otherwise become 2099 eligible. 2100 (3)(4) This section does Subsections (2) and (3) do not
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2101 preclude the court from imposing any other sanction specified or 2102 not specified in subsection (2) or subsection (3). 2103 (5) A court that suspends the driver license of a person 2104 pursuant to subsection (1) may direct the Department of Highway 2105 Safety and Motor Vehicles to issue the person a license for 2106 driving privilege restricted to business purposes only, as 2107 defined in s. 322.271, if he or she is otherwise qualified. 2108 Section 37. Subsection (1) of section 815.03, Florida 2109 Statutes, is amended to read: 2110 815.03 Definitions.—As used in this chapter, unless the 2111 context clearly indicates otherwise: 2112 (1) "Access" means to approach, instruct, communicate 2113 with, store data in, retrieve data from, or otherwise make use 2114 of any resources of a computer, computer system, or computer 2115 network, or electronic device. 2116 Section 38. Subsection (2) of section 815.06, Florida 2117 Statutes, is amended, and subsection (3) of that section is 2118 republished, to read: 2119 815.06 Offenses against users of computers, computer 2120 systems, computer networks, and electronic devices.— 2121 (2) A person commits an offense against users of 2122 computers, computer systems, computer networks, or electronic 2123 devices if he or she willfully, knowingly, and without 2124 authorization or exceeding authorization: 2125 (a) Accesses or causes to be accessed any computer,
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2126 computer system, computer network, or electronic device with 2127 knowledge that such access is unauthorized or the manner of use 2128 exceeds authorization; 2129 (b) Disrupts or denies or causes the denial of the ability 2130 to transmit data to or from an authorized user of a computer, 2131 computer system, computer network, or electronic device, which, 2132 in whole or in part, is owned by, under contract to, or operated 2133 for, on behalf of, or in conjunction with another; 2134 (c) Destroys, takes, injures, or damages equipment or 2135 supplies used or intended to be used in a computer, computer 2136 system, computer network, or electronic device; 2137 (d) Destroys, injures, or damages any computer, computer 2138 system, computer network, or electronic device; 2139 (e) Introduces any computer contaminant into any computer, 2140 computer system, computer network, or electronic device; or 2141 (f) Engages in audio or video surveillance of an 2142 individual by accessing any inherent feature or component of a 2143 computer, computer system, computer network, or electronic 2144 device, including accessing the data or information of a 2145 computer, computer system, computer network, or electronic 2146 device that is stored by a third party. 2147 (3)(a) Except as provided in paragraphs (b) and (c), a 2148 person who violates subsection (2) commits a felony of the third 2149 degree, punishable as provided in s. 775.082, s. 775.083, or s. 2150 775.084.
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2151 (b) A person commits a felony of the second degree, 2152 punishable as provided in s. 775.082, s. 775.083, or s. 775.084, 2153 if he or she violates subsection (2) and: 2154 1. Damages a computer, computer equipment or supplies, a 2155 computer system, or a computer network and the damage or loss is 2156 at least $5,000; 2157 2. Commits the offense for the purpose of devising or 2158 executing any scheme or artifice to defraud or obtain property; 2159 3. Interrupts or impairs a governmental operation or 2160 public communication, transportation, or supply of water, gas, 2161 or other public service; or 2162 4. Intentionally interrupts the transmittal of data to or 2163 from, or gains unauthorized access to, a computer, computer 2164 system, computer network, or electronic device belonging to any 2165 mode of public or private transit, as defined in s. 341.031. 2166 (c) A person who violates subsection (2) commits a felony 2167 of the first degree, punishable as provided in s. 775.082, s. 2168 775.083, or s. 775.084, if the violation: 2169 1. Endangers human life; or 2170 2. Disrupts a computer, computer system, computer network, 2171 or electronic device that affects medical equipment used in the 2172 direct administration of medical care or treatment to a person. 2173 Section 39. Section 817.413, Florida Statutes, is amended 2174 to read: 2175 817.413 Sale of used motor vehicle goods as new; penalty.—
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2176 (1) With respect to a transaction for which any charges 2177 will be paid from the proceeds of a motor vehicle insurance 2178 policy, and in which the purchase price of motor vehicle goods 2179 exceeds $100, it is unlawful for the seller to knowingly 2180 misrepresent orally, in writing, or by failure to speak, that 2181 the goods are new or original when they are used or repossessed 2182 or have been used for sales demonstration. 2183 (2) A person who violates the provisions of this section, 2184 if the purchase price of the motor vehicle goods is $1,000 or 2185 more, commits a felony of the third degree, punishable as 2186 provided in s. 775.082, s. 775.083, or s. 775.084. If the 2187 purchase price of the motor vehicle goods is less than $1,000, 2188 the person commits a misdemeanor of the first degree, punishable 2189 as provided in s. 775.082 or s. 775.083. 2190 Section 40. Paragraph (a) of subsection (2) of section 2191 831.28, Florida Statutes, is amended to read: 2192 831.28 Counterfeiting a payment instrument; possessing a 2193 counterfeit payment instrument; penalties.— 2194 (2)(a) It is unlawful to counterfeit a payment instrument 2195 with the intent to defraud a financial institution, account 2196 holder, or any other person or organization or for a person to 2197 have any counterfeit payment instrument in such person's 2198 possession with the intent to defraud a financial institution, 2199 account holder, or any other person or organization. Any person 2200 who violates this subsection commits a felony of the third
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2201 degree, punishable as provided in s. 775.082, s. 775.083, or s. 2202 775.084. 2203 Section 41. Subsections (5) through (10) of section 2204 847.011, Florida Statutes, are renumbered as subsections (6) 2205 through (11), respectively, and a new subsection (5) is added to 2206 that section, to read: 2207 847.011 Prohibition of certain acts in connection with 2208 obscene, lewd, etc., materials; penalty.— 2209 (5)(a)1. A person may not knowingly sell, lend, give away, 2210 distribute, transmit, show, or transmute; offer to sell, lend, 2211 give away, distribute, transmit, show, or transmute; have in his 2212 or her possession, custody, or control with the intent to sell, 2213 lend, give away, distribute, transmit, show, or transmute; or 2214 advertise in any manner an obscene, child-like sex doll. 2215 2.a. Except as provided in sub-subparagraph b., a person 2216 who violates this paragraph commits a felony of the third 2217 degree, punishable as provided in s. 775.082, s. 775.083, or s. 2218 775.084. 2219 b. A person who is convicted of violating this paragraph a 2220 second or subsequent time commits a felony of the second degree, 2221 punishable as provided in s. 775.082, s. 775.083, or s. 775.084. 2222 (b)1. A person who knowingly has in his or her possession, 2223 custody, or control an obscene, child-like sex doll commits a 2224 misdemeanor of the first degree, punishable as provided in s. 2225 775.082 or s. 775.083.
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2226 2. A person who is convicted of violating this paragraph a 2227 second or subsequent time commits a felony of the third degree, 2228 punishable as provided in s. 775.082, s. 775.083, or s. 775.084. 2229 Section 42. Section 849.01, Florida Statutes, is amended 2230 to read: 2231 849.01 Keeping gambling houses, etc.—Whoever by herself or 2232 himself, her or his servant, clerk or agent, or in any other 2233 manner has, keeps, exercises or maintains a gaming table or 2234 room, or gaming implements or apparatus, or house, booth, tent, 2235 shelter or other place for the purpose of gaming or gambling or 2236 in any place of which she or he may directly or indirectly have 2237 charge, control or management, either exclusively or with 2238 others, procures, suffers or permits any person to play for 2239 money or other valuable thing at any game whatever, whether 2240 heretofore prohibited or not, commits shall be guilty of a 2241 misdemeanor felony of the second third degree, punishable as 2242 provided in s. 775.082 or, s. 775.083, or s. 775.084. 2243 Section 43. Subsections (6) and (7) and paragraphs (c) and 2244 (d) of subsection (8) of section 877.112, Florida Statutes, are 2245 amended to read: 2246 877.112 Nicotine products and nicotine dispensing devices; 2247 prohibitions for minors; penalties; civil fines; signage 2248 requirements; preemption.— 2249 (6) PROHIBITIONS ON POSSESSION OF NICOTINE PRODUCTS OR 2250 NICOTINE DISPENSING DEVICES BY MINORS.—It is unlawful for any
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2251 person under 18 years of age to knowingly possess any nicotine 2252 product or a nicotine dispensing device. Any person under 18 2253 years of age who violates this subsection commits a noncriminal 2254 violation as defined in s. 775.08(3), punishable by: 2255 (a) For a first violation, 16 hours of community service 2256 or, instead of community service, a $25 fine. In addition, the 2257 person must attend a school-approved anti-tobacco and nicotine 2258 program, if locally available; or 2259 (b) For a second or subsequent violation within 12 weeks 2260 after of the first violation, a $25 fine.; or 2261 (c) For a third or subsequent violation within 12 weeks of 2262 the first violation, the court must direct the Department of 2263 Highway Safety and Motor Vehicles to withhold issuance of or 2264 suspend or revoke the person's driver license or driving 2265 privilege, as provided in s. 322.056. 2266 2267 Any second or subsequent violation not within the 12-week time 2268 period after the first violation is punishable as provided for a 2269 first violation. 2270 (7) PROHIBITION ON MISREPRESENTING AGE.—It is unlawful for 2271 any person under 18 years of age to misrepresent his or her age 2272 or military service for the purpose of inducing a retailer of 2273 nicotine products or nicotine dispensing devices or an agent or 2274 employee of such retailer to sell, give, barter, furnish, or 2275 deliver any nicotine product or nicotine dispensing device, or
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2276 to purchase, or attempt to purchase, any nicotine product or 2277 nicotine dispensing device from a person or a vending machine. 2278 Any person under 18 years of age who violates this subsection 2279 commits a noncriminal violation as defined in s. 775.08(3), 2280 punishable by: 2281 (a) For a first violation, 16 hours of community service 2282 or, instead of community service, a $25 fine and, in addition, 2283 the person must attend a school-approved anti-tobacco and 2284 nicotine program, if available; or 2285 (b) For a second violation within 12 weeks of the first 2286 violation, a $25 fine.; or 2287 (c) For a third or subsequent violation within 12 weeks of 2288 the first violation, the court must direct the Department of 2289 Highway Safety and Motor Vehicles to withhold issuance of or 2290 suspend or revoke the person's driver license or driving 2291 privilege, as provided in s. 322.056. 2292 2293 Any second or subsequent violation not within the 12-week time 2294 period after the first violation is punishable as provided for a 2295 first violation. 2296 (8) PENALTIES FOR MINORS.— 2297 (c) If a person under 18 years of age is found by the 2298 court to have committed a noncriminal violation under this 2299 section and that person has failed to complete community 2300 service, pay the fine as required by paragraph (6)(a) or
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2301 paragraph (7)(a), or attend a school-approved anti-tobacco and 2302 nicotine program, if locally available, the court may must 2303 direct the Department of Highway Safety and Motor Vehicles to 2304 withhold issuance of or suspend the driver license or driving 2305 privilege of that person for 30 consecutive days. 2306 (d) If a person under 18 years of age is found by the 2307 court to have committed a noncriminal violation under this 2308 section and that person has failed to pay the applicable fine as 2309 required by paragraph (6)(b) or paragraph (7)(b), the court may 2310 must direct the Department of Highway Safety and Motor Vehicles 2311 to withhold issuance of or suspend the driver license or driving 2312 privilege of that person for 45 consecutive days. 2313 Section 44. Paragraph (c) of subsection (1) of section 2314 893.135, Florida Statutes, is amended to read: 2315 893.135 Trafficking; mandatory sentences; suspension or 2316 reduction of sentences; conspiracy to engage in trafficking.— 2317 (1) Except as authorized in this chapter or in chapter 499 2318 and notwithstanding the provisions of s. 893.13: 2319 (c)1. A person who knowingly sells, purchases, 2320 manufactures, delivers, or brings into this state, or who is 2321 knowingly in actual or constructive possession of, 4 grams or 2322 more of any morphine, opium, hydromorphone, or any salt, 2323 derivative, isomer, or salt of an isomer thereof, including 2324 heroin, as described in s. 893.03(1)(b), (2)(a), (3)(c)3., or 2325 (3)(c)4., or 4 grams or more of any mixture containing any such
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2326 substance, but less than 30 kilograms of such substance or 2327 mixture, commits a felony of the first degree, which felony 2328 shall be known as "trafficking in illegal drugs," punishable as 2329 provided in s. 775.082, s. 775.083, or s. 775.084. If the 2330 quantity involved: 2331 a. Is 4 grams or more, but less than 14 grams, such person 2332 shall be sentenced to a mandatory minimum term of imprisonment 2333 of 3 years and shall be ordered to pay a fine of $50,000. 2334 b. Is 14 grams or more, but less than 28 grams, such 2335 person shall be sentenced to a mandatory minimum term of 2336 imprisonment of 15 years and shall be ordered to pay a fine of 2337 $100,000. 2338 c. Is 28 grams or more, but less than 30 kilograms, such 2339 person shall be sentenced to a mandatory minimum term of 2340 imprisonment of 25 years and shall be ordered to pay a fine of 2341 $500,000. 2342 2. A person who knowingly sells, purchases, manufactures, 2343 delivers, or brings into this state, or who is knowingly in 2344 actual or constructive possession of, 28 14 grams or more of 2345 hydrocodone, as described in s. 893.03(2)(a)1.k., codeine, as 2346 described in s. 893.03(2)(a)1.g., or any salt thereof, or 28 14 2347 grams or more of any mixture containing any such substance, 2348 commits a felony of the first degree, which felony shall be 2349 known as "trafficking in hydrocodone," punishable as provided in 2350 s. 775.082, s. 775.083, or s. 775.084. If the quantity involved:
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2351 a. Is 28 14 grams or more, but less than 50 28 grams, such 2352 person shall be sentenced to a mandatory minimum term of 2353 imprisonment of 3 years and shall be ordered to pay a fine of 2354 $50,000. 2355 b. Is 50 28 grams or more, but less than 100 50 grams, 2356 such person shall be sentenced to a mandatory minimum term of 2357 imprisonment of 7 years and shall be ordered to pay a fine of 2358 $100,000. 2359 c. Is 100 50 grams or more, but less than 300 200 grams, 2360 such person shall be sentenced to a mandatory minimum term of 2361 imprisonment of 15 years and shall be ordered to pay a fine of 2362 $500,000. 2363 d. Is 300 200 grams or more, but less than 30 kilograms, 2364 such person shall be sentenced to a mandatory minimum term of 2365 imprisonment of 25 years and shall be ordered to pay a fine of 2366 $750,000. 2367 3. A person who knowingly sells, purchases, manufactures, 2368 delivers, or brings into this state, or who is knowingly in 2369 actual or constructive possession of, 7 grams or more of 2370 oxycodone, as described in s. 893.03(2)(a)1.q., or any salt 2371 thereof, or 7 grams or more of any mixture containing any such 2372 substance, commits a felony of the first degree, which felony 2373 shall be known as "trafficking in oxycodone," punishable as 2374 provided in s. 775.082, s. 775.083, or s. 775.084. If the 2375 quantity involved:
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2376 a. Is 7 grams or more, but less than 14 grams, such person 2377 shall be sentenced to a mandatory minimum term of imprisonment 2378 of 3 years and shall be ordered to pay a fine of $50,000. 2379 b. Is 14 grams or more, but less than 25 grams, such 2380 person shall be sentenced to a mandatory minimum term of 2381 imprisonment of 7 years and shall be ordered to pay a fine of 2382 $100,000. 2383 c. Is 25 grams or more, but less than 100 grams, such 2384 person shall be sentenced to a mandatory minimum term of 2385 imprisonment of 15 years and shall be ordered to pay a fine of 2386 $500,000. 2387 d. Is 100 grams or more, but less than 30 kilograms, such 2388 person shall be sentenced to a mandatory minimum term of 2389 imprisonment of 25 years and shall be ordered to pay a fine of 2390 $750,000. 2391 4.a. A person who knowingly sells, purchases, 2392 manufactures, delivers, or brings into this state, or who is 2393 knowingly in actual or constructive possession of, 4 grams or 2394 more of: 2395 (I) Alfentanil, as described in s. 893.03(2)(b)1.; 2396 (II) Carfentanil, as described in s. 893.03(2)(b)6.; 2397 (III) Fentanyl, as described in s. 893.03(2)(b)9.; 2398 (IV) Sufentanil, as described in s. 893.03(2)(b)30.; 2399 (V) A fentanyl derivative, as described in s. 2400 893.03(1)(a)62.;
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2401 (VI) A controlled substance analog, as described in s. 2402 893.0356, of any substance described in sub-sub-subparagraphs 2403 (I)-(V); or 2404 (VII) A mixture containing any substance described in sub- 2405 sub-subparagraphs (I)-(VI), 2406 2407 commits a felony of the first degree, which felony shall be 2408 known as "trafficking in fentanyl," punishable as provided in s. 2409 775.082, s. 775.083, or s. 775.084. 2410 b. If the quantity involved under sub-subparagraph a.: 2411 (I) Is 4 grams or more, but less than 14 grams, such 2412 person shall be sentenced to a mandatory minimum term of 2413 imprisonment of 3 years, and shall be ordered to pay a fine of 2414 $50,000. 2415 (II) Is 14 grams or more, but less than 28 grams, such 2416 person shall be sentenced to a mandatory minimum term of 2417 imprisonment of 15 years, and shall be ordered to pay a fine of 2418 $100,000. 2419 (III) Is 28 grams or more, such person shall be sentenced 2420 to a mandatory minimum term of imprisonment of 25 years, and 2421 shall be ordered to pay a fine of $500,000. 2422 5. A person who knowingly sells, purchases, manufactures, 2423 delivers, or brings into this state, or who is knowingly in 2424 actual or constructive possession of, 30 kilograms or more of 2425 any morphine, opium, oxycodone, hydrocodone, codeine,
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2426 hydromorphone, or any salt, derivative, isomer, or salt of an 2427 isomer thereof, including heroin, as described in s. 2428 893.03(1)(b), (2)(a), (3)(c)3., or (3)(c)4., or 30 kilograms or 2429 more of any mixture containing any such substance, commits the 2430 first degree felony of trafficking in illegal drugs. A person 2431 who has been convicted of the first degree felony of trafficking 2432 in illegal drugs under this subparagraph shall be punished by 2433 life imprisonment and is ineligible for any form of 2434 discretionary early release except pardon or executive clemency 2435 or conditional medical release under s. 947.149. However, if the 2436 court determines that, in addition to committing any act 2437 specified in this paragraph: 2438 a. The person intentionally killed an individual or 2439 counseled, commanded, induced, procured, or caused the 2440 intentional killing of an individual and such killing was the 2441 result; or 2442 b. The person's conduct in committing that act led to a 2443 natural, though not inevitable, lethal result, 2444 2445 such person commits the capital felony of trafficking in illegal 2446 drugs, punishable as provided in ss. 775.082 and 921.142. A 2447 person sentenced for a capital felony under this paragraph shall 2448 also be sentenced to pay the maximum fine provided under 2449 subparagraph 1. 2450 6. A person who knowingly brings into this state 60
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2451 kilograms or more of any morphine, opium, oxycodone, 2452 hydrocodone, codeine, hydromorphone, or any salt, derivative, 2453 isomer, or salt of an isomer thereof, including heroin, as 2454 described in s. 893.03(1)(b), (2)(a), (3)(c)3., or (3)(c)4., or 2455 60 kilograms or more of any mixture containing any such 2456 substance, and who knows that the probable result of such 2457 importation would be the death of a person, commits capital 2458 importation of illegal drugs, a capital felony punishable as 2459 provided in ss. 775.082 and 921.142. A person sentenced for a 2460 capital felony under this paragraph shall also be sentenced to 2461 pay the maximum fine provided under subparagraph 1. 2462 Section 45. Effective upon becoming a law, section 900.05, 2463 Florida Statutes, is amended to read: 2464 900.05 Criminal justice data collection.— 2465 (1) LEGISLATIVE FINDINGS AND INTENT.—It is the intent of 2466 the Legislature to create a model of uniform criminal justice 2467 data collection by requiring local and state criminal justice 2468 agencies to report complete, accurate, and timely data, and 2469 making such data available to the public. The Legislature finds 2470 that it is an important state interest to implement a uniform 2471 data collection process and promote criminal justice data 2472 transparency. 2473 (2) DEFINITIONS.—As used in this section, the term: 2474 (a) "Annual felony caseload" means the yearly caseload of 2475 each full-time state attorney and assistant state attorney, or
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2476 public defender and assistant public defender, or conflict 2477 regional counsel and assistant conflict regional counsel for 2478 cases assigned to the circuit criminal division, based on the 2479 number of felony cases reported to the Supreme Court under s. 2480 25.075. The term does not include the appellate caseload of a 2481 public defender, or assistant public defender, conflict regional 2482 counsel, or assistant conflict regional counsel. Cases reported 2483 pursuant to this term must be associated with a case number, and 2484 each case number must only be reported once regardless of the 2485 number of attorney assignments that occur during the course of 2486 litigation. The caseload shall be calculated on June 30th and 2487 reported once at the beginning of the reporting agency's fiscal 2488 year. 2489 (b) "Annual felony conflict caseload" means the total 2490 number of felony cases the public defender or office of criminal 2491 conflict regional counsel has withdrawn from in the previous 2492 calendar year. The caseload shall be calculated on June 30th and 2493 reported once at the beginning of reporting agency's fiscal 2494 year. 2495 (c)(b) "Annual misdemeanor caseload" means the yearly 2496 caseload of each full-time state attorney and assistant state 2497 attorney, or public defender and assistant public defender, or 2498 conflict regional counsel and assistant conflict regional 2499 counsel for cases assigned to the county criminal division, 2500 based on the number of misdemeanor cases reported to the Supreme
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2501 Court under s. 25.075. The term does not include the appellate 2502 caseload of a public defender, or assistant public defender, 2503 conflict regional counsel, or assistant conflict regional 2504 counsel. Cases reported pursuant to this term must be associated 2505 with a case number, and each case number must only be reported 2506 once regardless of the number of attorney assignments that occur 2507 during the course of litigation. The caseload shall be 2508 calculated on June 30th and reported once at the beginning of 2509 the reporting agency's fiscal year. 2510 (d) "Annual misdemeanor conflict caseload" means the total 2511 number of misdemeanor cases the public defender or office of 2512 criminal conflict regional counsel has withdrawn from in the 2513 previous calendar year. The caseload shall be calculated on June 2514 30th and reported once at the beginning of the reporting 2515 agency's fiscal year. 2516 (e)(c) "Attorney assignment date" means the date a court- 2517 appointed attorney is assigned to the case or, if privately 2518 retained, the date an attorney files a notice of appearance with 2519 the clerk of court. 2520 (f)(d) "Attorney withdrawal date" means the date the court 2521 removes court-appointed counsel from a case or, for a privately 2522 retained attorney, the date a motion to withdraw is granted by 2523 the court. 2524 (g)(e) "Case number" means the uniform case identification 2525 number assigned by the clerk of court to a criminal case.
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2526 (h)(f) "Case status" means whether a case is open, active, 2527 inactive, closed, reclosed, or reopened due to a violation of 2528 probation or community control. 2529 (i)(g) "Charge description" means the statement of the 2530 conduct that is alleged to have been violated, the associated 2531 statutory section establishing such conduct as criminal, and the 2532 misdemeanor or felony classification that is provided for in the 2533 statutory section alleged to have been violated. 2534 (j) "Charge disposition" means the final adjudication for 2535 each charged crime, including, but not limited to, dismissal by 2536 state attorney, dismissal by judge, acquittal, no contest plea, 2537 guilty plea, or guilty finding at trial. 2538 (k)(h) "Charge modifier" means an aggravating circumstance 2539 of an alleged crime that enhances or reclassifies a charge to a 2540 more serious misdemeanor or felony offense level. 2541 (l)(i) "Concurrent or consecutive sentence flag" means an 2542 indication that a defendant is serving another sentence 2543 concurrently or consecutively in addition to the sentence for 2544 which data is being reported. 2545 (m)(j) "Daily number of correctional officers" means the 2546 number of full-time, part-time, and auxiliary correctional 2547 officers who are actively providing supervision, protection, 2548 care, custody, and control of inmates in a county detention 2549 facility or state correctional institution or facility each day. 2550 (n)(k) "Defense attorney type" means whether the attorney
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2551 is a public defender, regional conflict counsel, or other 2552 counsel court-appointed for the defendant; the attorney is 2553 privately retained by the defendant; or the defendant is 2554 represented pro se. 2555 (o)(l) "Deferred prosecution or pretrial diversion 2556 agreement date" means the date an agreement a contract is signed 2557 by the parties regarding a defendant's admission into a deferred 2558 prosecution or pretrial diversion program. 2559 (p)(m) "Deferred prosecution or pretrial diversion hearing 2560 date" means each date that a hearing, including a status 2561 hearing, is held on a case that is in a deferred prosecution or 2562 pretrial diversion program, if applicable. 2563 (q)(n) "Disciplinary violation and action" means any 2564 conduct performed by an inmate in violation of the rules of a 2565 county detention facility or state correctional institution or 2566 facility that results in the initiation of disciplinary 2567 proceedings by the custodial entity and the consequences of such 2568 disciplinary proceedings. 2569 (r)(o) "Disposition date" means the date of final 2570 judgment, adjudication, adjudication withheld, dismissal, or 2571 nolle prosequi for the case and if different dates apply, the 2572 disposition dates of each charge. 2573 (s) "Disposition type" means the manner in which the 2574 charge was closed, including final judgment, adjudication, 2575 adjudications withheld, dismissal, or nolle prosequi.
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2576 (t)(p) "Domestic violence flag" means an indication that a 2577 filed charge involves domestic violence as defined in s. 741.28. 2578 (u)(q) "Gang affiliation flag" means an indication that a 2579 defendant is involved in or associated with a criminal gang as 2580 defined in s. 874.03 at the time of the current offense. 2581 (v)(r) "Gain-time credit earned" means a credit of time 2582 awarded to an inmate in a county detention facility in 2583 accordance with s. 951.21 s. 951.22 or a state correctional 2584 institution or facility in accordance with s. 944.275. 2585 (w)(s) "Habitual offender flag" means an indication that a 2586 defendant is a habitual felony offender as defined in s. 775.084 2587 or a habitual misdemeanor offender as defined in s. 775.0837. 2588 (x) "Habitual violent felony offender flag" means an 2589 indication that a defendant is a habitual violent felony 2590 offender as defined in s. 775.084. 2591 (t) "Judicial transfer date" means a date on which a 2592 defendant's case is transferred to another court or presiding 2593 judge. 2594 (y)(u) "Number of contract attorneys representing indigent 2595 defendants for the office of the public defender" means the 2596 number of attorneys hired on a temporary basis, by contract, to 2597 represent indigent clients who were appointed a public defender, 2598 whereby the public defender withdraws from the case due to a 2599 conflict of interest. 2600 (z)(v) "Pretrial release violation flag" means an
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2601 indication that the defendant has violated the terms of his or 2602 her pretrial release. 2603 (aa)(w) "Prior incarceration within the state" means any 2604 prior history of a defendant's incarceration defendant being 2605 incarcerated in a county detention facility or Florida state 2606 correctional institution or facility. 2607 (bb) "Prison releasee reoffender flag" means an indication 2608 that the defendant is a prison releasee reoffender as defined in 2609 s. 775.082 or any other statute. 2610 (cc)(y) "Sexual offender flag" means an indication that a 2611 defendant was is required to register as a sexual predator as 2612 defined in s. 775.21 or as a sexual offender as defined in s. 2613 943.0435. 2614 (dd)(x) "Tentative release date" means the anticipated 2615 date that an inmate will be released from incarceration after 2616 the application of adjustments for any gain-time earned or 2617 credit for time served. 2618 (ee) "Three-time violent felony offender flag" means an 2619 indication that the defendant is a three-time violent felony 2620 offender as defined in s. 775.084 or any other statute. 2621 (ff) "Violent career criminal flag" means an indication 2622 that the defendant is a violent career criminal as defined in s. 2623 775.084 or any other statute. 2624 (3) DATA COLLECTION AND REPORTING.—Beginning January 1, 2625 2019, An entity required to collect data in accordance with this
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2626 subsection shall collect the specified data and required of the 2627 entity on a biweekly basis. Each entity shall report it the data 2628 collected in accordance with this subsection to the Department 2629 of Law Enforcement on a monthly basis. 2630 (a) Clerk of the court.—Each clerk of court shall collect 2631 the following data for each criminal case: 2632 1. Case number. 2633 2. Date that the alleged offense occurred. 2634 3. County in which the offense is alleged to have 2635 occurred. 2636 3.4. Date the defendant is taken into physical custody by 2637 a law enforcement agency or is issued a notice to appear on a 2638 criminal charge, if such date is different from the date the 2639 offense is alleged to have occurred. 2640 4. Whether the case originated by a notice to appear. 2641 5. Date that the criminal prosecution of a defendant is 2642 formally initiated through the filing, with the clerk of the 2643 court, of an information by the state attorney or an indictment 2644 issued by a grand jury. 2645 6. Arraignment date. 2646 7. Attorney appointment assignment date. 2647 8. Attorney withdrawal date. 2648 9. Case status. 2649 10. Charge disposition. 2650 11.10. Disposition date and disposition type.
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2651 12.11. Information related to each defendant, including: 2652 a. Identifying information, including name, known aliases, 2653 date of birth, age, race, or ethnicity, and gender. 2654 b. Zip code of last known address primary residence. 2655 c. Primary language. 2656 d. Citizenship. 2657 e. Immigration status, if applicable. 2658 f. Whether the defendant has been found by a court to be 2659 indigent under pursuant to s. 27.52. 2660 13.12. Information related to the formal charges filed 2661 against the defendant, including: 2662 a. Charge description. 2663 b. Charge modifier description and statute, if applicable. 2664 c. Drug type for each drug charge, if known. 2665 d. Qualification for a flag designation as defined in this 2666 section, including a domestic violence flag, gang affiliation 2667 flag, sexual offender flag, habitual offender flag, habitual 2668 violent felony offender flag, or pretrial release violation 2669 flag, prison releasee reoffender flag, three-time violent felony 2670 offender flag, or violent career criminal flag. 2671 14.13. Information related to bail or bond and pretrial 2672 release determinations, including the dates of any such 2673 determinations: 2674 a. Pretrial release determination made at a first 2675 appearance hearing that occurs within 24 hours of arrest,
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2676 including any all monetary and nonmonetary conditions of 2677 release. 2678 b. Modification of bail or bond conditions made by a court 2679 having jurisdiction to try the defendant or, in the absence of 2680 the judge of the trial court, by the circuit court, including 2681 modifications to any monetary and nonmonetary conditions of 2682 release. 2683 c. Cash bail or bond payment, including whether the 2684 defendant utilized a bond agent to post a surety bond. 2685 d. Date defendant is released on bail, bond, or pretrial 2686 release for the current case. 2687 e. Bail or bond revocation due to a new offense, a failure 2688 to appear, or a violation of the terms of bail or bond, if 2689 applicable. 2690 15.14. Information related to court dates and dates of 2691 motions and appearances, including: 2692 a. Date of any court appearance and the type of proceeding 2693 scheduled for each date reported. 2694 b. Date of any failure to appear in court, if applicable. 2695 c. Deferred prosecution or pretrial diversion hearing, if 2696 applicable. 2697 c. Judicial transfer date, if applicable. 2698 d. Each scheduled trial date. 2699 e. Date that a defendant files a notice to participate in 2700 discovery.
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2701 f. Speedy trial motion date and each hearing date dates, 2702 if applicable. 2703 g. Dismissal motion date and each hearing date dates, if 2704 applicable. 2705 16.15. Defense attorney type. 2706 17.16. Information related to sentencing, including: 2707 a. Date that a court enters a sentence against a 2708 defendant. 2709 b. Charge sentenced to, including charge sequence number 2710 and, charge description, statute, type, and charge class 2711 severity. 2712 c. Sentence type and length imposed by the court in the 2713 current case, reported in years, months, and days, including, 2714 but not limited to, the total duration of incarceration 2715 imprisonment in a county detention facility or state 2716 correctional institution or facility, and conditions of 2717 probation or community control supervision. 2718 d. Amount of time served in custody by the defendant 2719 related to each charge the reported criminal case that is 2720 credited at the time of disposition of the charge case to reduce 2721 the imposed actual length of time the defendant will serve on 2722 the term of incarceration imprisonment that is ordered by the 2723 court at disposition. 2724 e. Total amount of court costs fees imposed by the court 2725 at the disposition of the case disposition.
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2726 f. Outstanding balance of the defendant's court fees 2727 imposed by the court at disposition of the case. 2728 f.g. Total amount of fines imposed by the court at the 2729 disposition of the case disposition. 2730 h. Outstanding balance of the defendant's fines imposed by 2731 the court at disposition of the case. 2732 g.i. Restitution amount ordered at sentencing, including 2733 the amount collected by the court and the amount paid to the 2734 victim, if applicable. 2735 j. Digitized sentencing scoresheet prepared in accordance 2736 with s. 921.0024. 2737 18.17. The sentencing judge number of judges or magistrate 2738 magistrates, or the equivalent their equivalents, hearing 2739 cases in circuit or county criminal divisions of the 2740 circuit court. Judges or magistrates, or their equivalents, 2741 who solely hear appellate cases from the county criminal 2742 division are not to be reported under this subparagraph. 2743 (b) State attorney.—Each state attorney shall collect the 2744 following data: 2745 1. Information related to a human victim of a criminal 2746 offense, including: 2747 a. Identifying information of the victim, including race, 2748 or ethnicity, gender, and age at the time of the offense. 2749 b. Relationship to the offender, if any. 2750 2. Number of full-time prosecutors.
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2751 3. Number of part-time prosecutors. 2752 4. Annual felony caseload. 2753 5. Annual misdemeanor caseload. 2754 6. Disposition of each referred charge, such as filed, 2755 declined, or diverted Any charge referred to the state attorney 2756 by a law enforcement agency related to an episode of criminal 2757 activity. 2758 7. Number of cases in which a no-information was filed. 2759 8. Information related to each defendant, including: 2760 a. Each charge referred to the state attorney by a law 2761 enforcement agency or sworn complainant related to an episode of 2762 criminal activity. 2763 b. Case number, name, and date of birth. 2764 c.b. Drug type for each drug charge, if applicable. 2765 d. Deferred prosecution or pretrial diversion agreement 2766 date, if applicable. 2767 (c) Public defender.—Each public defender shall collect 2768 the following data for each criminal case: 2769 1. Number of full-time public defenders. 2770 2. Number of part-time public defenders. 2771 3. Number of contract attorneys representing indigent 2772 defendants for the office of the public defender. 2773 4. Annual felony caseload. 2774 5. Annual felony conflict caseload. 2775 6.5. Annual misdemeanor caseload.
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2776 7. Annual misdemeanor conflict caseload. 2777 (d) County detention facility.—The administrator of each 2778 county detention facility shall collect the following data: 2779 1. Maximum capacity for the county detention facility. 2780 2. Weekly admissions to the county detention facility for 2781 a revocation of probation or community control. 2782 3. Weekly admissions to the county detention facility for 2783 a revocation of pretrial release. 2784 4.3. Daily population of the county detention facility, 2785 including the specific number of inmates in the custody of the 2786 county that: 2787 a. Are awaiting case disposition. 2788 b. Have been sentenced by a court to a term of 2789 incarceration imprisonment in the county detention facility. 2790 c. Have been sentenced by a court to a term of 2791 imprisonment with the Department of Corrections and who are 2792 awaiting transportation to the department. 2793 d. Have a federal detainer, or are awaiting disposition of 2794 a case in federal court, or are awaiting other federal court 2795 disposition. 2796 5.4. Information related to each inmate, including: 2797 a. Identifying information, including name, date of birth, 2798 race, ethnicity, gender, case number, and identification number 2799 assigned by the county detention facility. 2800 b.a. Date when an inmate a defendant is processed and
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2801 booked into the county detention facility subsequent to an 2802 arrest for a new violation of law or for a violation of 2803 probation, or pretrial release, or community control. 2804 c.b. Reason why an inmate a defendant is processed and 2805 booked into the county detention facility, including if it is 2806 for a new law violation, or a violation of probation, or 2807 pretrial release, or community control. 2808 d.c. Qualification for a flag designation as defined in 2809 this section, including domestic violence flag, gang affiliation 2810 flag, habitual offender flag, habitual violent felony offender 2811 flag, pretrial release violation flag, or sexual offender flag, 2812 prison releasee reoffender flag, three-time violent felony 2813 offender flag, or violent career criminal flag. 2814 6.5. Total population of the county detention facility at 2815 year-end. This data must include the same specified 2816 classifications as subparagraph 4.3. 2817 7.6. Per diem rate for a county detention facility bed. 2818 8.7. Daily number of correctional officers for the county 2819 detention facility. 2820 9.8. Annual county detention facility budget. This 2821 information only needs to be reported once annually at the 2822 beginning of the county's fiscal year. 2823 10.9. Annual revenue generated for the county from the 2824 temporary incarceration of federal defendants or inmates. 2825 (e) Department of Corrections.—The Department of
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2826 Corrections shall collect the following data: 2827 1. Information related to each inmate, including: 2828 a. Identifying information, including name, date of birth, 2829 race, or ethnicity, gender, case number, and identification 2830 number assigned by the department. 2831 b. Number of children. 2832 b.c. Highest education level, including any vocational 2833 training. 2834 c.d. Date the inmate was admitted to the custody of the 2835 department for his or her current incarceration. 2836 d.e. Current institution placement and the security level 2837 assigned to the institution. 2838 e.f. Custody level assignment. 2839 f.g. Qualification for a flag designation as defined in 2840 this section, including sexual offender flag, habitual offender 2841 flag, habitual violent felony offender flag, prison releasee 2842 reoffender flag, three-time violent felony offender flag, 2843 violent career criminal flag, gang affiliation flag, or 2844 concurrent or consecutive sentence flag. 2845 g.h. County that committed the prisoner to the custody of 2846 the department. 2847 h.i. Whether the reason for admission to the department is 2848 for a new conviction or a violation of probation, community 2849 control, or parole. For an admission for a probation, community 2850 control, or parole violation, the department shall report
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2851 whether the violation was technical or based on a new violation 2852 of law. 2853 i.j. Specific statutory citation for which the inmate was 2854 committed to the department, including, for an inmate convicted 2855 of drug trafficking under s. 893.135, the statutory citation for 2856 each specific drug trafficked. 2857 j.k. Length of sentence or concurrent or consecutive 2858 sentences served. 2859 k. Length of concurrent or consecutive sentences served. 2860 l. Tentative release date. 2861 m. Gain time earned under in accordance with s. 944.275. 2862 n. Prior incarceration within the state. 2863 o. Disciplinary violation and action. 2864 p. Participation in rehabilitative or educational programs 2865 while in the custody of the department. 2866 q. Digitized sentencing scoresheet prepared in accordance 2867 with s. 921.0024. 2868 2. Information about each state correctional institution 2869 or facility, including: 2870 a. Budget for each state correctional institution or 2871 facility. 2872 b. Daily prison population of all inmates incarcerated in 2873 a state correctional institution or facility. 2874 c. Daily number of correctional officers for each state 2875 correctional institution or facility.
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2876 3. Information related to persons supervised by the 2877 department on probation or community control, including: 2878 a. Identifying information for each person supervised by 2879 the department on probation or community control, including his 2880 or her name, date of birth, race, or ethnicity, gender sex, case 2881 number, and department-assigned case number. 2882 b. Length of probation or community control sentence 2883 imposed and amount of time that has been served on such 2884 sentence. 2885 c. Projected termination date for probation or community 2886 control. 2887 d. Revocation of probation or community control due to a 2888 violation, including whether the revocation is due to a 2889 technical violation of the conditions of supervision or from the 2890 commission of a new law violation. 2891 4. Per diem rates for: 2892 a. Prison bed. 2893 b. Probation. 2894 c. Community control. 2895 2896 This information only needs to be reported once annually at the 2897 time the most recent per diem rate is published. 2898 (f) Justice Administrative Commission.—The Justice 2899 Administrative Commission shall collect the following data: 2900 1. Number of private registry attorneys representing
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CS/HB 7125 2019
2901 indigent adult defendants. 2902 2. Annual felony caseload assigned to private registry 2903 contract attorneys. 2904 3. Annual misdemeanor caseload assigned to private 2905 registry contract attorneys. 2906 (g) Criminal conflict regional counsel.—Each office of 2907 criminal conflict regional counsel shall report the following 2908 data: 2909 1. Number of full-time assistant conflict regional counsel 2910 handling criminal cases. 2911 2. Number of part-time assistant conflict regional counsel 2912 handling criminal cases. 2913 3. Number of contract attorneys representing indigent 2914 adult defendants. 2915 4. Annual felony caseload assigned to contract attorneys. 2916 5. Annual misdemeanor caseload assigned to contract 2917 attorneys. 2918 6. Annual felony conflict caseload. 2919 7. Annual misdemeanor conflict caseload. 2920 8. Annual felony caseload declined or not accepted by 2921 criminal conflict regional counsel due to lack of qualified 2922 assistant regional counsel or due to excessive caseload. 2923 9. Annual misdemeanor caseload declined or not accepted by 2924 criminal conflict regional counsel due to lack of qualified 2925 assistant conflict regional counsel or due to excessive
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June 28, 2019 Criminal Procedure Rules Committee 380 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
2926 caseload. 2927 (4) DATA PUBLICLY AVAILABLE.—Beginning January 1, 2019, 2928 The Department of Law Enforcement shall publish datasets in its 2929 possession in a modern, open, electronic format that is machine- 2930 readable and readily accessible by the public on the 2931 department's website. The published data must be searchable, at 2932 a minimum, by each data elements, county, circuit, and unique 2933 identifier. Beginning March 1, 2019, the department shall 2934 publish any begin publishing the data received under subsection 2935 (3) (2) in the same modern, open, electronic format that is 2936 machine-readable and readily accessible to the public on the 2937 department's website. The department shall publish all data 2938 received under subsection (3) (2) no later than January 1, 2020, 2939 and monthly thereafter July 1, 2019. 2940 (5) NONCOMPLIANCE.—Notwithstanding any other provision of 2941 law, an entity required to collect and transmit data under 2942 subsection (3) paragraph (3)(a) or paragraph (3)(d) which does 2943 not comply with the requirements of this section is ineligible 2944 to receive funding from the General Appropriations Act, any 2945 state grant program administered by the Department of Law 2946 Enforcement, or any other state agency for 5 years after the 2947 date of noncompliance. 2948 (6) CONFIDENTIALITY.—Information collected by a reporting 2949 agency which is exempt and confidential upon collection remains 2950 exempt and confidential when reported to the Department of Law
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June 28, 2019 Criminal Procedure Rules Committee 381 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
2951 Enforcement under this section. 2952 Section 46. Subsection (3) of section 921.0022, Florida 2953 Statutes, is amended to read: 2954 921.0022 Criminal Punishment Code; offense severity 2955 ranking chart.— 2956 (3) OFFENSE SEVERITY RANKING CHART 2957 (a) LEVEL 1 2958 Florida Felony Statute Degree Description 2959 24.118(3)(a) 3rd Counterfeit or altered state lottery ticket. 2960 212.054(2)(b) 3rd Discretionary sales surtax; limitations, administration, and collection. 2961 212.15(2)(b) 3rd Failure to remit sales taxes, amount greater than $1,000 $300 but less than $20,000. 2962 316.1935(1) 3rd Fleeing or attempting to elude law enforcement officer. 2963
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June 28, 2019 Criminal Procedure Rules Committee 382 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
319.30(5) 3rd Sell, exchange, give away certificate of title or identification number plate. 2964 319.35(1)(a) 3rd Tamper, adjust, change, etc., an odometer. 2965 320.26(1)(a) 3rd Counterfeit, manufacture, or sell registration license plates or validation stickers. 2966 322.212 3rd Possession of forged, stolen, (1)(a)-(c) counterfeit, or unlawfully issued driver license; possession of simulated identification. 2967 322.212(4) 3rd Supply or aid in supplying unauthorized driver license or identification card. 2968 322.212(5)(a) 3rd False application for driver license or identification card. 2969 414.39(3)(a) 3rd Fraudulent misappropriation of
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June 28, 2019 Criminal Procedure Rules Committee 383 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
public assistance funds by employee/official, value more than $200. 2970 443.071(1) 3rd False statement or representation to obtain or increase reemployment assistance benefits. 2971 509.151(1) 3rd Defraud an innkeeper, food or lodging value greater than $1,000 $300. 2972 517.302(1) 3rd Violation of the Florida Securities and Investor Protection Act. 2973 562.27(1) 3rd Possess still or still apparatus. 2974 713.69 3rd Tenant removes property upon which lien has accrued, value more than $1,000 $50. 2975 812.014(3)(c) 3rd Petit theft (3rd conviction);
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June 28, 2019 Criminal Procedure Rules Committee 384 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
theft of any property not specified in subsection (2). 2976 812.081(2) 3rd Unlawfully makes or causes to be made a reproduction of a trade secret. 2977 815.04(5)(a) 3rd Offense against intellectual property (i.e., computer programs, data). 2978 817.52(2) 3rd Hiring with intent to defraud, motor vehicle services. 2979 817.569(2) 3rd Use of public record or public records information or providing false information to facilitate commission of a felony. 2980 826.01 3rd Bigamy. 2981 828.122(3) 3rd Fighting or baiting animals. 2982 831.04(1) 3rd Any erasure, alteration, etc.,
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June 28, 2019 Criminal Procedure Rules Committee 385 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
of any replacement deed, map, plat, or other document listed in s. 92.28. 2983 831.31(1)(a) 3rd Sell, deliver, or possess counterfeit controlled substances, all but s. 893.03(5) drugs. 2984 832.041(1) 3rd Stopping payment with intent to defraud $150 or more. 2985 832.05(2)(b) & 3rd Knowing, making, issuing (4)(c) worthless checks $150 or more or obtaining property in return for worthless check $150 or more. 2986 838.15(2) 3rd Commercial bribe receiving. 2987 838.16 3rd Commercial bribery. 2988 843.18 3rd Fleeing by boat to elude a law enforcement officer. 2989
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June 28, 2019 Criminal Procedure Rules Committee 386 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
847.011(1)(a) 3rd Sell, distribute, etc., obscene, lewd, etc., material (2nd conviction). 2990 849.01 3rd Keeping gambling house. 2991 849.09(1)(a)-(d) 3rd Lottery; set up, promote, etc., or assist therein, conduct or advertise drawing for prizes, or dispose of property or money by means of lottery. 2992 849.23 3rd Gambling-related machines; "common offender" as to property rights. 2993 849.25(2) 3rd Engaging in bookmaking. 2994 860.08 3rd Interfere with a railroad signal. 2995 860.13(1)(a) 3rd Operate aircraft while under the influence. 2996 893.13(2)(a)2. 3rd Purchase of cannabis.
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June 28, 2019 Criminal Procedure Rules Committee 387 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
2997 893.13(6)(a) 3rd Possession of cannabis (more than 20 grams). 2998 934.03(1)(a) 3rd Intercepts, or procures any other person to intercept, any wire or oral communication. 2999 3000 (b) LEVEL 2 3001 Florida Felony Statute Degree Description 3002 379.2431 3rd Possession of 11 or fewer (1)(e)3. marine turtle eggs in violation of the Marine Turtle Protection Act. 3003 379.2431 3rd Possession of more than 11 (1)(e)4. marine turtle eggs in violation of the Marine Turtle Protection Act. 3004 403.413(6)(c) 3rd Dumps waste litter exceeding 500 lbs. in weight or 100 cubic
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June 28, 2019 Criminal Procedure Rules Committee 388 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
feet in volume or any quantity for commercial purposes, or hazardous waste. 3005 517.07(2) 3rd Failure to furnish a prospectus meeting requirements. 3006 590.28(1) 3rd Intentional burning of lands. 3007 784.05(3) 3rd Storing or leaving a loaded firearm within reach of minor who uses it to inflict injury or death. 3008 787.04(1) 3rd In violation of court order, take, entice, etc., minor beyond state limits. 3009 806.13(1)(b)3. 3rd Criminal mischief; damage $1,000 or more to public communication or any other public service. 3010 810.061(2) 3rd Impairing or impeding telephone or power to a dwelling;
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June 28, 2019 Criminal Procedure Rules Committee 389 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
facilitating or furthering burglary. 3011 810.09(2)(e) 3rd Trespassing on posted commercial horticulture property. 3012 812.014(2)(c)1. 3rd Grand theft, 3rd degree; $1,000 $300 or more but less than $5,000. 3013 812.014(2)(d) 3rd Grand theft, 3rd degree; $1,000 $100 or more but less than $5,000 $300, taken from unenclosed curtilage of dwelling. 3014 812.015(7) 3rd Possession, use, or attempted use of an antishoplifting or inventory control device countermeasure. 3015 817.234(1)(a)2. 3rd False statement in support of insurance claim. 3016
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June 28, 2019 Criminal Procedure Rules Committee 390 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
817.481(3)(a) 3rd Obtain credit or purchase with false, expired, counterfeit, etc., credit card, value over $300. 3017 817.52(3) 3rd Failure to redeliver hired vehicle. 3018 817.54 3rd With intent to defraud, obtain mortgage note, etc., by false representation. 3019 817.60(5) 3rd Dealing in credit cards of another. 3020 817.60(6)(a) 3rd Forgery; purchase goods, services with false card. 3021 817.61 3rd Fraudulent use of credit cards over $100 or more within 6 months. 3022 826.04 3rd Knowingly marries or has sexual intercourse with person to whom related.
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June 28, 2019 Criminal Procedure Rules Committee 391 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
3023 831.01 3rd Forgery. 3024 831.02 3rd Uttering forged instrument; utters or publishes alteration with intent to defraud. 3025 831.07 3rd Forging bank bills, checks, drafts, or promissory notes. 3026 831.08 3rd Possessing 10 or more forged notes, bills, checks, or drafts. 3027 831.09 3rd Uttering forged notes, bills, checks, drafts, or promissory notes. 3028 831.11 3rd Bringing into the state forged bank bills, checks, drafts, or notes. 3029 832.05(3)(a) 3rd Cashing or depositing item with intent to defraud. 3030
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June 28, 2019 Criminal Procedure Rules Committee 392 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
843.08 3rd False personation. 3031 893.13(2)(a)2. 3rd Purchase of any s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (2)(c)10., (3), or (4) drugs other than cannabis. 3032 893.147(2) 3rd Manufacture or delivery of drug paraphernalia. 3033 3034 (c) LEVEL 3 3035 Florida Felony Statute Degree Description 3036 119.10(2)(b) 3rd Unlawful use of confidential information from police reports. 3037 316.066 3rd Unlawfully obtaining or using (3)(b)-(d) confidential crash reports. 3038 316.193(2)(b) 3rd Felony DUI, 3rd conviction.
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CS/HB 7125 2019
3039 316.1935(2) 3rd Fleeing or attempting to elude law enforcement officer in patrol vehicle with siren and lights activated. 3040 319.30(4) 3rd Possession by junkyard of motor vehicle with identification number plate removed. 3041 319.33(1)(a) 3rd Alter or forge any certificate of title to a motor vehicle or mobile home. 3042 319.33(1)(c) 3rd Procure or pass title on stolen vehicle. 3043 319.33(4) 3rd With intent to defraud, possess, sell, etc., a blank, forged, or unlawfully obtained title or registration. 3044 327.35(2)(b) 3rd Felony BUI. 3045 328.05(2) 3rd Possess, sell, or counterfeit
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June 28, 2019 Criminal Procedure Rules Committee 394 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
fictitious, stolen, or fraudulent titles or bills of sale of vessels. 3046 328.07(4) 3rd Manufacture, exchange, or possess vessel with counterfeit or wrong ID number. 3047 376.302(5) 3rd Fraud related to reimbursement for cleanup expenses under the Inland Protection Trust Fund. 3048 379.2431 3rd Taking, disturbing, mutilating, (1)(e)5. destroying, causing to be destroyed, transferring, selling, offering to sell, molesting, or harassing marine turtles, marine turtle eggs, or marine turtle nests in violation of the Marine Turtle Protection Act. 3049 379.2431 3rd Possessing any marine turtle (1)(e)6. species or hatchling, or parts thereof, or the nest of any
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June 28, 2019 Criminal Procedure Rules Committee 395 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
marine turtle species described in the Marine Turtle Protection Act. 3050 379.2431 3rd Soliciting to commit or (1)(e)7. conspiring to commit a violation of the Marine Turtle Protection Act. 3051 400.9935(4)(a) 3rd Operating a clinic, or offering or (b) services requiring licensure, without a license. 3052 400.9935(4)(e) 3rd Filing a false license application or other required information or failing to report information. 3053 440.1051(3) 3rd False report of workers' compensation fraud or retaliation for making such a report. 3054 501.001(2)(b) 2nd Tampers with a consumer product or the container using
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June 28, 2019 Criminal Procedure Rules Committee 396 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
materially false/misleading information. 3055 624.401(4)(a) 3rd Transacting insurance without a certificate of authority. 3056 624.401(4)(b)1. 3rd Transacting insurance without a certificate of authority; premium collected less than $20,000. 3057 626.902(1)(a) & 3rd Representing an unauthorized (b) insurer. 3058 697.08 3rd Equity skimming. 3059 790.15(3) 3rd Person directs another to discharge firearm from a vehicle. 3060 806.10(1) 3rd Maliciously injure, destroy, or interfere with vehicles or equipment used in firefighting. 3061 806.10(2) 3rd Interferes with or assaults
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June 28, 2019 Criminal Procedure Rules Committee 397 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
firefighter in performance of duty. 3062 810.09(2)(c) 3rd Trespass on property other than structure or conveyance armed with firearm or dangerous weapon. 3063 812.014(2)(c)2. 3rd Grand theft; $5,000 or more but less than $10,000. 3064 812.0145(2)(c) 3rd Theft from person 65 years of age or older; $300 or more but less than $10,000. 3065 815.04(5)(b) 2nd Computer offense devised to defraud or obtain property. 3066 817.034(4)(a)3. 3rd Engages in scheme to defraud (Florida Communications Fraud Act), property valued at less than $20,000. 3067 817.233 3rd Burning to defraud insurer. 3068
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June 28, 2019 Criminal Procedure Rules Committee 398 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
817.234 3rd Unlawful solicitation of (8)(b) & (c) persons involved in motor vehicle accidents. 3069 817.234(11)(a) 3rd Insurance fraud; property value less than $20,000. 3070 817.236 3rd Filing a false motor vehicle insurance application. 3071 817.2361 3rd Creating, marketing, or presenting a false or fraudulent motor vehicle insurance card. 3072 817.413(2) 3rd Sale of used goods as new. 3073 831.28(2)(a) 3rd Counterfeiting a payment instrument with intent to defraud or possessing a counterfeit payment instrument with intent to defraud. 3074 831.29 2nd Possession of instruments for counterfeiting driver licenses
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June 28, 2019 Criminal Procedure Rules Committee 399 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
or identification cards. 3075 838.021(3)(b) 3rd Threatens unlawful harm to public servant. 3076 843.19 3rd Injure, disable, or kill police dog or horse. 3077 860.15(3) 3rd Overcharging for repairs and parts. 3078 870.01(2) 3rd Riot; inciting or encouraging. 3079 893.13(1)(a)2. 3rd Sell, manufacture, or deliver cannabis (or other s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (2)(c)10., (3), or (4) drugs). 3080 893.13(1)(d)2. 2nd Sell, manufacture, or deliver s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (2)(c)10., (3), or (4) drugs
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June 28, 2019 Criminal Procedure Rules Committee 400 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
within 1,000 feet of university. 3081 893.13(1)(f)2. 2nd Sell, manufacture, or deliver s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (2)(c)10., (3), or (4) drugs within 1,000 feet of public housing facility. 3082 893.13(4)(c) 3rd Use or hire of minor; deliver to minor other controlled substances. 3083 893.13(6)(a) 3rd Possession of any controlled substance other than felony possession of cannabis. 3084 893.13(7)(a)8. 3rd Withhold information from practitioner regarding previous receipt of or prescription for a controlled substance. 3085 893.13(7)(a)9. 3rd Obtain or attempt to obtain
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June 28, 2019 Criminal Procedure Rules Committee 401 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
controlled substance by fraud, forgery, misrepresentation, etc. 3086 893.13(7)(a)10. 3rd Affix false or forged label to package of controlled substance. 3087 893.13(7)(a)11. 3rd Furnish false or fraudulent material information on any document or record required by chapter 893. 3088 893.13(8)(a)1. 3rd Knowingly assist a patient, other person, or owner of an animal in obtaining a controlled substance through deceptive, untrue, or fraudulent representations in or related to the practitioner's practice. 3089 893.13(8)(a)2. 3rd Employ a trick or scheme in the practitioner's practice to assist a patient, other person,
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June 28, 2019 Criminal Procedure Rules Committee 402 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
or owner of an animal in obtaining a controlled substance. 3090 893.13(8)(a)3. 3rd Knowingly write a prescription for a controlled substance for a fictitious person. 3091 893.13(8)(a)4. 3rd Write a prescription for a controlled substance for a patient, other person, or an animal if the sole purpose of writing the prescription is a monetary benefit for the practitioner. 3092 918.13(1)(a) 3rd Alter, destroy, or conceal investigation evidence. 3093 944.47 3rd Introduce contraband to (1)(a)1. & 2. correctional facility. 3094 944.47(1)(c) 2nd Possess contraband while upon the grounds of a correctional institution.
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June 28, 2019 Criminal Procedure Rules Committee 403 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
3095 985.721 3rd Escapes from a juvenile facility (secure detention or residential commitment facility). 3096 3097 (d) LEVEL 4 3098 Florida Felony Statute Degree Description 3099 316.1935(3)(a) 2nd Driving at high speed or with wanton disregard for safety while fleeing or attempting to elude law enforcement officer who is in a patrol vehicle with siren and lights activated. 3100 499.0051(1) 3rd Failure to maintain or deliver transaction history, transaction information, or transaction statements. 3101 499.0051(5) 2nd Knowing sale or delivery, or possession with intent to sell,
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June 28, 2019 Criminal Procedure Rules Committee 404 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
contraband prescription drugs. 3102 517.07(1) 3rd Failure to register securities. 3103 517.12(1) 3rd Failure of dealer, associated person, or issuer of securities to register. 3104 784.07(2)(b) 3rd Battery of law enforcement officer, firefighter, etc. 3105 784.074(1)(c) 3rd Battery of sexually violent predators facility staff. 3106 784.075 3rd Battery on detention or commitment facility staff. 3107 784.078 3rd Battery of facility employee by throwing, tossing, or expelling certain fluids or materials. 3108 784.08(2)(c) 3rd Battery on a person 65 years of age or older. 3109 784.081(3) 3rd Battery on specified official
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June 28, 2019 Criminal Procedure Rules Committee 405 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
or employee. 3110 784.082(3) 3rd Battery by detained person on visitor or other detainee. 3111 784.083(3) 3rd Battery on code inspector. 3112 784.085 3rd Battery of child by throwing, tossing, projecting, or expelling certain fluids or materials. 3113 787.03(1) 3rd Interference with custody; wrongly takes minor from appointed guardian. 3114 787.04(2) 3rd Take, entice, or remove child beyond state limits with criminal intent pending custody proceedings. 3115 787.04(3) 3rd Carrying child beyond state lines with criminal intent to avoid producing child at custody hearing or delivering
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June 28, 2019 Criminal Procedure Rules Committee 406 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
to designated person. 3116 787.07 3rd Human smuggling. 3117 790.115(1) 3rd Exhibiting firearm or weapon within 1,000 feet of a school. 3118 790.115(2)(b) 3rd Possessing electric weapon or device, destructive device, or other weapon on school property. 3119 790.115(2)(c) 3rd Possessing firearm on school property. 3120 800.04(7)(c) 3rd Lewd or lascivious exhibition; offender less than 18 years. 3121 810.02(4)(a) 3rd Burglary, or attempted burglary, of an unoccupied structure; unarmed; no assault or battery. 3122 810.02(4)(b) 3rd Burglary, or attempted burglary, of an unoccupied
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CS/HB 7125 2019
conveyance; unarmed; no assault or battery. 3123 810.06 3rd Burglary; possession of tools. 3124 810.08(2)(c) 3rd Trespass on property, armed with firearm or dangerous weapon. 3125 812.014(2)(c)3. 3rd Grand theft, 3rd degree $10,000 or more but less than $20,000. 3126 812.014 3rd Grand theft, 3rd degree; (2)(c)4.-10. specified items, a will, firearm, motor vehicle, livestock, etc. 3127 812.0195(2) 3rd Dealing in stolen property by use of the Internet; property stolen $300 or more. 3128 817.505(4)(a) 3rd Patient brokering. 3129 817.563(1) 3rd Sell or deliver substance other than controlled substance
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June 28, 2019 Criminal Procedure Rules Committee 408 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
agreed upon, excluding s. 893.03(5) drugs. 3130 817.568(2)(a) 3rd Fraudulent use of personal identification information. 3131 817.625(2)(a) 3rd Fraudulent use of scanning device, skimming device, or reencoder. 3132 817.625(2)(c) 3rd Possess, sell, or deliver skimming device. 3133 828.125(1) 2nd Kill, maim, or cause great bodily harm or permanent breeding disability to any registered horse or cattle. 3134 837.02(1) 3rd Perjury in official proceedings. 3135 837.021(1) 3rd Make contradictory statements in official proceedings. 3136 838.022 3rd Official misconduct.
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June 28, 2019 Criminal Procedure Rules Committee 409 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
3137 839.13(2)(a) 3rd Falsifying records of an individual in the care and custody of a state agency. 3138 839.13(2)(c) 3rd Falsifying records of the Department of Children and Families. 3139 843.021 3rd Possession of a concealed handcuff key by a person in custody. 3140 843.025 3rd Deprive law enforcement, correctional, or correctional probation officer of means of protection or communication. 3141 843.15(1)(a) 3rd Failure to appear while on bail for felony (bond estreature or bond jumping). 3142 847.0135(5)(c) 3rd Lewd or lascivious exhibition using computer; offender less than 18 years.
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June 28, 2019 Criminal Procedure Rules Committee 410 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
3143 874.05(1)(a) 3rd Encouraging or recruiting another to join a criminal gang. 3144 893.13(2)(a)1. 2nd Purchase of cocaine (or other s. 893.03(1)(a), (b), or (d), (2)(a), (2)(b), or (2)(c)5. drugs). 3145 914.14(2) 3rd Witnesses accepting bribes. 3146 914.22(1) 3rd Force, threaten, etc., witness, victim, or informant. 3147 914.23(2) 3rd Retaliation against a witness, victim, or informant, no bodily injury. 3148 918.12 3rd Tampering with jurors. 3149 934.215 3rd Use of two-way communications device to facilitate commission of a crime. 3150
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June 28, 2019 Criminal Procedure Rules Committee 411 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
944.47(1)(a)6. 3rd Introduction of contraband (cellular telephone or other portable communication device) into correctional institution. 3151 951.22(1)(h), 3rd Intoxicating drug, cellular (j), & (k) telephone, or instrumentality to aid escape introduced into county detention facility. 3152 3153 (e) LEVEL 5 3154 Florida Felony Statute Degree Description 3155 316.027(2)(a) 3rd Accidents involving personal injuries other than serious bodily injury, failure to stop; leaving scene. 3156 316.1935(4)(a) 2nd Aggravated fleeing or eluding. 3157 316.80(2) 2nd Unlawful conveyance of fuel; obtaining fuel fraudulently. 3158
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June 28, 2019 Criminal Procedure Rules Committee 412 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
322.34(6) 3rd Careless operation of motor vehicle with suspended license, resulting in death or serious bodily injury. 3159 327.30(5) 3rd Vessel accidents involving personal injury; leaving scene. 3160 379.365(2)(c)1. 3rd Violation of rules relating to: willful molestation of stone crab traps, lines, or buoys; illegal bartering, trading, or sale, conspiring or aiding in such barter, trade, or sale, or supplying, agreeing to supply, aiding in supplying, or giving away stone crab trap tags or certificates; making, altering, forging, counterfeiting, or reproducing stone crab trap tags; possession of forged, counterfeit, or imitation stone crab trap tags; and engaging in the commercial harvest of stone crabs while license is
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June 28, 2019 Criminal Procedure Rules Committee 413 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
suspended or revoked. 3161 379.367(4) 3rd Willful molestation of a commercial harvester's spiny lobster trap, line, or buoy. 3162 379.407(5)(b)3. 3rd Possession of 100 or more undersized spiny lobsters. 3163 381.0041(11)(b) 3rd Donate blood, plasma, or organs knowing HIV positive. 3164 440.10(1)(g) 2nd Failure to obtain workers' compensation coverage. 3165 440.105(5) 2nd Unlawful solicitation for the purpose of making workers' compensation claims. 3166 440.381(2) 2nd Submission of false, misleading, or incomplete information with the purpose of avoiding or reducing workers' compensation premiums. 3167
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June 28, 2019 Criminal Procedure Rules Committee 414 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
624.401(4)(b)2. 2nd Transacting insurance without a certificate or authority; premium collected $20,000 or more but less than $100,000. 3168 626.902(1)(c) 2nd Representing an unauthorized insurer; repeat offender. 3169 790.01(2) 3rd Carrying a concealed firearm. 3170 790.162 2nd Threat to throw or discharge destructive device. 3171 790.163(1) 2nd False report of bomb, explosive, weapon of mass destruction, or use of firearms in violent manner. 3172 790.221(1) 2nd Possession of short-barreled shotgun or machine gun. 3173 790.23 2nd Felons in possession of firearms, ammunition, or electronic weapons or devices. 3174
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June 28, 2019 Criminal Procedure Rules Committee 415 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
796.05(1) 2nd Live on earnings of a prostitute; 1st offense. 3175 800.04(6)(c) 3rd Lewd or lascivious conduct; offender less than 18 years of age. 3176 800.04(7)(b) 2nd Lewd or lascivious exhibition; offender 18 years of age or older. 3177 806.111(1) 3rd Possess, manufacture, or dispense fire bomb with intent to damage any structure or property. 3178 812.0145(2)(b) 2nd Theft from person 65 years of age or older; $10,000 or more but less than $50,000. 3179 812.015(8) 3rd Retail theft; property stolen is valued at $1,000 $300 or more and one or more specified acts. 3180
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June 28, 2019 Criminal Procedure Rules Committee 416 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
812.019(1) 2nd Stolen property; dealing in or trafficking in. 3181 812.131(2)(b) 3rd Robbery by sudden snatching. 3182 812.16(2) 3rd Owning, operating, or conducting a chop shop. 3183 817.034(4)(a)2. 2nd Communications fraud, value $20,000 to $50,000. 3184 817.234(11)(b) 2nd Insurance fraud; property value $20,000 or more but less than $100,000. 3185 817.2341(1), 3rd Filing false financial (2)(a) & statements, making false (3)(a) entries of material fact or false statements regarding property values relating to the solvency of an insuring entity. 3186 817.568(2)(b) 2nd Fraudulent use of personal identification information; value of benefit, services
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June 28, 2019 Criminal Procedure Rules Committee 417 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
received, payment avoided, or amount of injury or fraud, $5,000 or more or use of personal identification information of 10 or more persons. 3187 817.611(2)(a) 2nd Traffic in or possess 5 to 14 counterfeit credit cards or related documents. 3188 817.625(2)(b) 2nd Second or subsequent fraudulent use of scanning device, skimming device, or reencoder. 3189 825.1025(4) 3rd Lewd or lascivious exhibition in the presence of an elderly person or disabled adult. 3190 827.071(4) 2nd Possess with intent to promote any photographic material, motion picture, etc., which includes sexual conduct by a child. 3191
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June 28, 2019 Criminal Procedure Rules Committee 418 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
827.071(5) 3rd Possess, control, or intentionally view any photographic material, motion picture, etc., which includes sexual conduct by a child. 3192 828.12(2) 3rd Tortures any animal with intent to inflict intense pain, serious physical injury, or death. 3193 839.13(2)(b) 2nd Falsifying records of an individual in the care and custody of a state agency involving great bodily harm or death. 3194 843.01 3rd Resist officer with violence to person; resist arrest with violence. 3195 847.0135(5)(b) 2nd Lewd or lascivious exhibition using computer; offender 18 years or older. 3196
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June 28, 2019 Criminal Procedure Rules Committee 419 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
847.0137 3rd Transmission of pornography by (2) & (3) electronic device or equipment. 3197 847.0138 3rd Transmission of material (2) & (3) harmful to minors to a minor by electronic device or equipment. 3198 874.05(1)(b) 2nd Encouraging or recruiting another to join a criminal gang; second or subsequent offense. 3199 874.05(2)(a) 2nd Encouraging or recruiting person under 13 years of age to join a criminal gang. 3200 893.13(1)(a)1. 2nd Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)5. drugs). 3201 893.13(1)(c)2. 2nd Sell, manufacture, or deliver cannabis (or other s. 893.03(1)(c), (2)(c)1.,
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June 28, 2019 Criminal Procedure Rules Committee 420 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
(2)(c)2., (2)(c)3., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (2)(c)10., (3), or (4) drugs) within 1,000 feet of a child care facility, school, or state, county, or municipal park or publicly owned recreational facility or community center. 3202 893.13(1)(d)1. 1st Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)5. drugs) within 1,000 feet of university. 3203 893.13(1)(e)2. 2nd Sell, manufacture, or deliver cannabis or other drug prohibited under s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (2)(c)10., (3), or (4) within 1,000 feet of property used for
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June 28, 2019 Criminal Procedure Rules Committee 421 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
religious services or a specified business site. 3204 893.13(1)(f)1. 1st Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), or (2)(a), (2)(b), or (2)(c)5. drugs) within 1,000 feet of public housing facility. 3205 893.13(4)(b) 2nd Use or hire of minor; deliver to minor other controlled substance. 3206 893.1351(1) 3rd Ownership, lease, or rental for trafficking in or manufacturing of controlled substance. 3207 3208 (f) LEVEL 6 3209 Florida Felony Statute Degree Description 3210 316.027(2)(b) 2nd Leaving the scene of a crash involving serious bodily
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June 28, 2019 Criminal Procedure Rules Committee 422 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
injury. 3211 316.193(2)(b) 3rd Felony DUI, 4th or subsequent conviction. 3212 400.9935(4)(c) 2nd Operating a clinic, or offering services requiring licensure, without a license. 3213 499.0051(2) 2nd Knowing forgery of transaction history, transaction information, or transaction statement. 3214 499.0051(3) 2nd Knowing purchase or receipt of prescription drug from unauthorized person. 3215 499.0051(4) 2nd Knowing sale or transfer of prescription drug to unauthorized person. 3216 775.0875(1) 3rd Taking firearm from law enforcement officer. 3217
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June 28, 2019 Criminal Procedure Rules Committee 423 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
784.021(1)(a) 3rd Aggravated assault; deadly weapon without intent to kill. 3218 784.021(1)(b) 3rd Aggravated assault; intent to commit felony. 3219 784.041 3rd Felony battery; domestic battery by strangulation. 3220 784.048(3) 3rd Aggravated stalking; credible threat. 3221 784.048(5) 3rd Aggravated stalking of person under 16. 3222 784.07(2)(c) 2nd Aggravated assault on law enforcement officer. 3223 784.074(1)(b) 2nd Aggravated assault on sexually violent predators facility staff. 3224 784.08(2)(b) 2nd Aggravated assault on a person 65 years of age or older. 3225
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June 28, 2019 Criminal Procedure Rules Committee 424 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
784.081(2) 2nd Aggravated assault on specified official or employee. 3226 784.082(2) 2nd Aggravated assault by detained person on visitor or other detainee. 3227 784.083(2) 2nd Aggravated assault on code inspector. 3228 787.02(2) 3rd False imprisonment; restraining with purpose other than those in s. 787.01. 3229 790.115(2)(d) 2nd Discharging firearm or weapon on school property. 3230 790.161(2) 2nd Make, possess, or throw destructive device with intent to do bodily harm or damage property. 3231 790.164(1) 2nd False report concerning bomb, explosive, weapon of mass destruction, act of arson or
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June 28, 2019 Criminal Procedure Rules Committee 425 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
violence to state property, or use of firearms in violent manner. 3232 790.19 2nd Shooting or throwing deadly missiles into dwellings, vessels, or vehicles. 3233 794.011(8)(a) 3rd Solicitation of minor to participate in sexual activity by custodial adult. 3234 794.05(1) 2nd Unlawful sexual activity with specified minor. 3235 800.04(5)(d) 3rd Lewd or lascivious molestation; victim 12 years of age or older but less than 16 years of age; offender less than 18 years. 3236 800.04(6)(b) 2nd Lewd or lascivious conduct; offender 18 years of age or older. 3237 806.031(2) 2nd Arson resulting in great bodily
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June 28, 2019 Criminal Procedure Rules Committee 426 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
harm to firefighter or any other person. 3238 810.02(3)(c) 2nd Burglary of occupied structure; unarmed; no assault or battery. 3239 810.145(8)(b) 2nd Video voyeurism; certain minor victims; 2nd or subsequent offense. 3240 812.014(2)(b)1. 2nd Property stolen $20,000 or more, but less than $100,000, grand theft in 2nd degree. 3241 812.014(6) 2nd Theft; property stolen $3,000 or more; coordination of others. 3242 812.015(9)(a) 2nd Retail theft; property stolen $1,000 $300 or more; second or subsequent conviction. 3243 812.015(9)(b) 2nd Retail theft; property stolen $3,000 or more; coordination of others.
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June 28, 2019 Criminal Procedure Rules Committee 427 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
3244 812.13(2)(c) 2nd Robbery, no firearm or other weapon (strong-arm robbery). 3245 817.4821(5) 2nd Possess cloning paraphernalia with intent to create cloned cellular telephones. 3246 817.505(4)(b) 2nd Patient brokering; 10 or more patients. 3247 825.102(1) 3rd Abuse of an elderly person or disabled adult. 3248 825.102(3)(c) 3rd Neglect of an elderly person or disabled adult. 3249 825.1025(3) 3rd Lewd or lascivious molestation of an elderly person or disabled adult. 3250 825.103(3)(c) 3rd Exploiting an elderly person or disabled adult and property is valued at less than $10,000. 3251
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June 28, 2019 Criminal Procedure Rules Committee 428 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
827.03(2)(c) 3rd Abuse of a child. 3252 827.03(2)(d) 3rd Neglect of a child. 3253 827.071(2) & (3) 2nd Use or induce a child in a sexual performance, or promote or direct such performance. 3254 836.05 2nd Threats; extortion. 3255 836.10 2nd Written threats to kill, do bodily injury, or conduct a mass shooting or an act of terrorism. 3256 843.12 3rd Aids or assists person to escape. 3257 847.011 3rd Distributing, offering to distribute, or possessing with intent to distribute obscene materials depicting minors. 3258 847.012 3rd Knowingly using a minor in the production of materials harmful
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June 28, 2019 Criminal Procedure Rules Committee 429 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
to minors. 3259 847.0135(2) 3rd Facilitates sexual conduct of or with a minor or the visual depiction of such conduct. 3260 914.23 2nd Retaliation against a witness, victim, or informant, with bodily injury. 3261 944.35(3)(a)2. 3rd Committing malicious battery upon or inflicting cruel or inhuman treatment on an inmate or offender on community supervision, resulting in great bodily harm. 3262 944.40 2nd Escapes. 3263 944.46 3rd Harboring, concealing, aiding escaped prisoners. 3264 944.47(1)(a)5. 2nd Introduction of contraband (firearm, weapon, or explosive) into correctional facility.
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June 28, 2019 Criminal Procedure Rules Committee 430 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
3265 951.22(1)(i) 3rd Intoxicating drug, Firearm, or 951.22(1) weapon introduced into county detention facility. 3266 3267 (g) LEVEL 7 3268 Florida Felony Statute Degree Description 3269 316.027(2)(c) 1st Accident involving death, failure to stop; leaving scene. 3270 316.193(3)(c)2. 3rd DUI resulting in serious bodily injury. 3271 316.1935(3)(b) 1st Causing serious bodily injury or death to another person; driving at high speed or with wanton disregard for safety while fleeing or attempting to elude law enforcement officer who is in a patrol vehicle with siren and lights activated. 3272
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June 28, 2019 Criminal Procedure Rules Committee 431 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
327.35(3)(c)2. 3rd Vessel BUI resulting in serious bodily injury. 3273 402.319(2) 2nd Misrepresentation and negligence or intentional act resulting in great bodily harm, permanent disfiguration, permanent disability, or death. 3274 409.920 3rd Medicaid provider fraud; (2)(b)1.a. $10,000 or less. 3275 409.920 2nd Medicaid provider fraud; more (2)(b)1.b. than $10,000, but less than $50,000. 3276 456.065(2) 3rd Practicing a health care profession without a license. 3277 456.065(2) 2nd Practicing a health care profession without a license which results in serious bodily injury. 3278 458.327(1) 3rd Practicing medicine without a
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June 28, 2019 Criminal Procedure Rules Committee 432 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
license. 3279 459.013(1) 3rd Practicing osteopathic medicine without a license. 3280 460.411(1) 3rd Practicing chiropractic medicine without a license. 3281 461.012(1) 3rd Practicing podiatric medicine without a license. 3282 462.17 3rd Practicing naturopathy without a license. 3283 463.015(1) 3rd Practicing optometry without a license. 3284 464.016(1) 3rd Practicing nursing without a license. 3285 465.015(2) 3rd Practicing pharmacy without a license. 3286 466.026(1) 3rd Practicing dentistry or dental hygiene without a license.
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June 28, 2019 Criminal Procedure Rules Committee 433 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
3287 467.201 3rd Practicing midwifery without a license. 3288 468.366 3rd Delivering respiratory care services without a license. 3289 483.828(1) 3rd Practicing as clinical laboratory personnel without a license. 3290 483.901(7) 3rd Practicing medical physics without a license. 3291 484.013(1)(c) 3rd Preparing or dispensing optical devices without a prescription. 3292 484.053 3rd Dispensing hearing aids without a license. 3293 494.0018(2) 1st Conviction of any violation of chapter 494 in which the total money and property unlawfully obtained exceeded $50,000 and there were five or more
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June 28, 2019 Criminal Procedure Rules Committee 434 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
victims. 3294 560.123(8)(b)1. 3rd Failure to report currency or payment instruments exceeding $300 but less than $20,000 by a money services business. 3295 560.125(5)(a) 3rd Money services business by unauthorized person, currency or payment instruments exceeding $300 but less than $20,000. 3296 655.50(10)(b)1. 3rd Failure to report financial transactions exceeding $300 but less than $20,000 by financial institution. 3297 775.21(10)(a) 3rd Sexual predator; failure to register; failure to renew driver license or identification card; other registration violations. 3298 775.21(10)(b) 3rd Sexual predator working where
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June 28, 2019 Criminal Procedure Rules Committee 435 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
children regularly congregate. 3299 775.21(10)(g) 3rd Failure to report or providing false information about a sexual predator; harbor or conceal a sexual predator. 3300 782.051(3) 2nd Attempted felony murder of a person by a person other than the perpetrator or the perpetrator of an attempted felony. 3301 782.07(1) 2nd Killing of a human being by the act, procurement, or culpable negligence of another (manslaughter). 3302 782.071 2nd Killing of a human being or unborn child by the operation of a motor vehicle in a reckless manner (vehicular homicide). 3303 782.072 2nd Killing of a human being by the
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June 28, 2019 Criminal Procedure Rules Committee 436 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
operation of a vessel in a reckless manner (vessel homicide). 3304 784.045(1)(a)1. 2nd Aggravated battery; intentionally causing great bodily harm or disfigurement. 3305 784.045(1)(a)2. 2nd Aggravated battery; using deadly weapon. 3306 784.045(1)(b) 2nd Aggravated battery; perpetrator aware victim pregnant. 3307 784.048(4) 3rd Aggravated stalking; violation of injunction or court order. 3308 784.048(7) 3rd Aggravated stalking; violation of court order. 3309 784.07(2)(d) 1st Aggravated battery on law enforcement officer. 3310 784.074(1)(a) 1st Aggravated battery on sexually violent predators facility
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June 28, 2019 Criminal Procedure Rules Committee 437 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
staff. 3311 784.08(2)(a) 1st Aggravated battery on a person 65 years of age or older. 3312 784.081(1) 1st Aggravated battery on specified official or employee. 3313 784.082(1) 1st Aggravated battery by detained person on visitor or other detainee. 3314 784.083(1) 1st Aggravated battery on code inspector. 3315 787.06(3)(a)2. 1st Human trafficking using coercion for labor and services of an adult. 3316 787.06(3)(e)2. 1st Human trafficking using coercion for labor and services by the transfer or transport of an adult from outside Florida to within the state. 3317
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June 28, 2019 Criminal Procedure Rules Committee 438 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
790.07(4) 1st Specified weapons violation subsequent to previous conviction of s. 790.07(1) or (2). 3318 790.16(1) 1st Discharge of a machine gun under specified circumstances. 3319 790.165(2) 2nd Manufacture, sell, possess, or deliver hoax bomb. 3320 790.165(3) 2nd Possessing, displaying, or threatening to use any hoax bomb while committing or attempting to commit a felony. 3321 790.166(3) 2nd Possessing, selling, using, or attempting to use a hoax weapon of mass destruction. 3322 790.166(4) 2nd Possessing, displaying, or threatening to use a hoax weapon of mass destruction while committing or attempting to commit a felony.
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June 28, 2019 Criminal Procedure Rules Committee 439 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
3323 790.23 1st,PBL Possession of a firearm by a person who qualifies for the penalty enhancements provided for in s. 874.04. 3324 794.08(4) 3rd Female genital mutilation; consent by a parent, guardian, or a person in custodial authority to a victim younger than 18 years of age. 3325 796.05(1) 1st Live on earnings of a prostitute; 2nd offense. 3326 796.05(1) 1st Live on earnings of a prostitute; 3rd and subsequent offense. 3327 800.04(5)(c)1. 2nd Lewd or lascivious molestation; victim younger than 12 years of age; offender younger than 18 years of age. 3328 800.04(5)(c)2. 2nd Lewd or lascivious molestation;
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June 28, 2019 Criminal Procedure Rules Committee 440 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
victim 12 years of age or older but younger than 16 years of age; offender 18 years of age or older. 3329 800.04(5)(e) 1st Lewd or lascivious molestation; victim 12 years of age or older but younger than 16 years; offender 18 years or older; prior conviction for specified sex offense. 3330 806.01(2) 2nd Maliciously damage structure by fire or explosive. 3331 810.02(3)(a) 2nd Burglary of occupied dwelling; unarmed; no assault or battery. 3332 810.02(3)(b) 2nd Burglary of unoccupied dwelling; unarmed; no assault or battery. 3333 810.02(3)(d) 2nd Burglary of occupied conveyance; unarmed; no assault or battery.
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June 28, 2019 Criminal Procedure Rules Committee 441 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
3334 810.02(3)(e) 2nd Burglary of authorized emergency vehicle. 3335 812.014(2)(a)1. 1st Property stolen, valued at $100,000 or more or a semitrailer deployed by a law enforcement officer; property stolen while causing other property damage; 1st degree grand theft. 3336 812.014(2)(b)2. 2nd Property stolen, cargo valued at less than $50,000, grand theft in 2nd degree. 3337 812.014(2)(b)3. 2nd Property stolen, emergency medical equipment; 2nd degree grand theft. 3338 812.014(2)(b)4. 2nd Property stolen, law enforcement equipment from authorized emergency vehicle. 3339 812.0145(2)(a) 1st Theft from person 65 years of
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June 28, 2019 Criminal Procedure Rules Committee 442 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
age or older; $50,000 or more. 3340 812.019(2) 1st Stolen property; initiates, organizes, plans, etc., the theft of property and traffics in stolen property. 3341 812.131(2)(a) 2nd Robbery by sudden snatching. 3342 812.133(2)(b) 1st Carjacking; no firearm, deadly weapon, or other weapon. 3343 817.034(4)(a)1. 1st Communications fraud, value greater than $50,000. 3344 817.234(8)(a) 2nd Solicitation of motor vehicle accident victims with intent to defraud. 3345 817.234(9) 2nd Organizing, planning, or participating in an intentional motor vehicle collision. 3346 817.234(11)(c) 1st Insurance fraud; property value $100,000 or more.
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June 28, 2019 Criminal Procedure Rules Committee 443 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
3347 817.2341 1st Making false entries of (2)(b) & material fact or false (3)(b) statements regarding property values relating to the solvency of an insuring entity which are a significant cause of the insolvency of that entity. 3348 817.535(2)(a) 3rd Filing false lien or other unauthorized document. 3349 817.611(2)(b) 2nd Traffic in or possess 15 to 49 counterfeit credit cards or related documents. 3350 825.102(3)(b) 2nd Neglecting an elderly person or disabled adult causing great bodily harm, disability, or disfigurement. 3351 825.103(3)(b) 2nd Exploiting an elderly person or disabled adult and property is valued at $10,000 or more, but less than $50,000.
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June 28, 2019 Criminal Procedure Rules Committee 444 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
3352 827.03(2)(b) 2nd Neglect of a child causing great bodily harm, disability, or disfigurement. 3353 827.04(3) 3rd Impregnation of a child under 16 years of age by person 21 years of age or older. 3354 837.05(2) 3rd Giving false information about alleged capital felony to a law enforcement officer. 3355 838.015 2nd Bribery. 3356 838.016 2nd Unlawful compensation or reward for official behavior. 3357 838.021(3)(a) 2nd Unlawful harm to a public servant. 3358 838.22 2nd Bid tampering. 3359 843.0855(2) 3rd Impersonation of a public officer or employee.
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June 28, 2019 Criminal Procedure Rules Committee 445 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
3360 843.0855(3) 3rd Unlawful simulation of legal process. 3361 843.0855(4) 3rd Intimidation of a public officer or employee. 3362 847.0135(3) 3rd Solicitation of a child, via a computer service, to commit an unlawful sex act. 3363 847.0135(4) 2nd Traveling to meet a minor to commit an unlawful sex act. 3364 872.06 2nd Abuse of a dead human body. 3365 874.05(2)(b) 1st Encouraging or recruiting person under 13 to join a criminal gang; second or subsequent offense. 3366 874.10 1st,PBL Knowingly initiates, organizes, plans, finances, directs, manages, or supervises criminal gang-related activity.
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June 28, 2019 Criminal Procedure Rules Committee 446 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
3367 893.13(1)(c)1. 1st Sell, manufacture, or deliver cocaine (or other drug prohibited under s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)5.) within 1,000 feet of a child care facility, school, or state, county, or municipal park or publicly owned recreational facility or community center. 3368 893.13(1)(e)1. 1st Sell, manufacture, or deliver cocaine or other drug prohibited under s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)5., within 1,000 feet of property used for religious services or a specified business site. 3369 893.13(4)(a) 1st Use or hire of minor; deliver to minor other controlled substance.
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June 28, 2019 Criminal Procedure Rules Committee 447 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
3370 893.135(1)(a)1. 1st Trafficking in cannabis, more than 25 lbs., less than 2,000 lbs. 3371 893.135 1st Trafficking in cocaine, more (1)(b)1.a. than 28 grams, less than 200 grams. 3372 893.135 1st Trafficking in illegal drugs, (1)(c)1.a. more than 4 grams, less than 14 grams. 3373 893.135 1st Trafficking in hydrocodone, 28 (1)(c)2.a. 14 grams or more, less than 50 28 grams. 3374 893.135 1st Trafficking in hydrocodone, 50 (1)(c)2.b. 28 grams or more, less than 100 50 grams. 3375 893.135 1st Trafficking in oxycodone, 7 (1)(c)3.a. grams or more, less than 14 grams. 3376
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June 28, 2019 Criminal Procedure Rules Committee 448 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
893.135 1st Trafficking in oxycodone, 14 (1)(c)3.b. grams or more, less than 25 grams. 3377 893.135 1st Trafficking in fentanyl, 4 (1)(c)4.b.(I) grams or more, less than 14 grams. 3378 893.135 1st Trafficking in phencyclidine, (1)(d)1.a. 28 grams or more, less than 200 grams. 3379 893.135(1)(e)1. 1st Trafficking in methaqualone, 200 grams or more, less than 5 kilograms. 3380 893.135(1)(f)1. 1st Trafficking in amphetamine, 14 grams or more, less than 28 grams. 3381 893.135 1st Trafficking in flunitrazepam, 4 (1)(g)1.a. grams or more, less than 14 grams. 3382 893.135 1st Trafficking in gamma-
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June 28, 2019 Criminal Procedure Rules Committee 449 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
(1)(h)1.a. hydroxybutyric acid (GHB), 1 kilogram or more, less than 5 kilograms. 3383 893.135 1st Trafficking in 1,4-Butanediol, (1)(j)1.a. 1 kilogram or more, less than 5 kilograms. 3384 893.135 1st Trafficking in Phenethylamines, (1)(k)2.a. 10 grams or more, less than 200 grams. 3385 893.135 1st Trafficking in synthetic (1)(m)2.a. cannabinoids, 280 grams or more, less than 500 grams. 3386 893.135 1st Trafficking in synthetic (1)(m)2.b. cannabinoids, 500 grams or more, less than 1,000 grams. 3387 893.135 1st Trafficking in n-benzyl (1)(n)2.a. phenethylamines, 14 grams or more, less than 100 grams. 3388 893.1351(2) 2nd Possession of place for
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June 28, 2019 Criminal Procedure Rules Committee 450 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
trafficking in or manufacturing of controlled substance. 3389 896.101(5)(a) 3rd Money laundering, financial transactions exceeding $300 but less than $20,000. 3390 896.104(4)(a)1. 3rd Structuring transactions to evade reporting or registration requirements, financial transactions exceeding $300 but less than $20,000. 3391 943.0435(4)(c) 2nd Sexual offender vacating permanent residence; failure to comply with reporting requirements. 3392 943.0435(8) 2nd Sexual offender; remains in state after indicating intent to leave; failure to comply with reporting requirements. 3393 943.0435(9)(a) 3rd Sexual offender; failure to comply with reporting
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June 28, 2019 Criminal Procedure Rules Committee 451 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
requirements. 3394 943.0435(13) 3rd Failure to report or providing false information about a sexual offender; harbor or conceal a sexual offender. 3395 943.0435(14) 3rd Sexual offender; failure to report and reregister; failure to respond to address verification; providing false registration information. 3396 944.607(9) 3rd Sexual offender; failure to comply with reporting requirements. 3397 944.607(10)(a) 3rd Sexual offender; failure to submit to the taking of a digitized photograph. 3398 944.607(12) 3rd Failure to report or providing false information about a sexual offender; harbor or conceal a sexual offender.
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June 28, 2019 Criminal Procedure Rules Committee 452 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
3399 944.607(13) 3rd Sexual offender; failure to report and reregister; failure to respond to address verification; providing false registration information. 3400 985.4815(10) 3rd Sexual offender; failure to submit to the taking of a digitized photograph. 3401 985.4815(12) 3rd Failure to report or providing false information about a sexual offender; harbor or conceal a sexual offender. 3402 985.4815(13) 3rd Sexual offender; failure to report and reregister; failure to respond to address verification; providing false registration information. 3403 3404 (h) LEVEL 8 3405 Florida Felony Description
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June 28, 2019 Criminal Procedure Rules Committee 453 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
Statute Degree 3406 316.193 2nd DUI manslaughter. (3)(c)3.a. 3407 316.1935(4)(b) 1st Aggravated fleeing or attempted eluding with serious bodily injury or death. 3408 327.35(3)(c)3. 2nd Vessel BUI manslaughter. 3409 499.0051(6) 1st Knowing trafficking in contraband prescription drugs. 3410 499.0051(7) 1st Knowing forgery of prescription labels or prescription drug labels. 3411 560.123(8)(b)2. 2nd Failure to report currency or payment instruments totaling or exceeding $20,000, but less than $100,000 by money transmitter. 3412 560.125(5)(b) 2nd Money transmitter business by
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June 28, 2019 Criminal Procedure Rules Committee 454 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
unauthorized person, currency or payment instruments totaling or exceeding $20,000, but less than $100,000. 3413 655.50(10)(b)2. 2nd Failure to report financial transactions totaling or exceeding $20,000, but less than $100,000 by financial institutions. 3414 777.03(2)(a) 1st Accessory after the fact, capital felony. 3415 782.04(4) 2nd Killing of human without design when engaged in act or attempt of any felony other than arson, sexual battery, robbery, burglary, kidnapping, aggravated fleeing or eluding with serious bodily injury or death, aircraft piracy, or unlawfully discharging bomb. 3416 782.051(2) 1st Attempted felony murder while
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June 28, 2019 Criminal Procedure Rules Committee 455 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
perpetrating or attempting to perpetrate a felony not enumerated in s. 782.04(3). 3417 782.071(1)(b) 1st Committing vehicular homicide and failing to render aid or give information. 3418 782.072(2) 1st Committing vessel homicide and failing to render aid or give information. 3419 787.06(3)(a)1. 1st Human trafficking for labor and services of a child. 3420 787.06(3)(b) 1st Human trafficking using coercion for commercial sexual activity of an adult. 3421 787.06(3)(c)2. 1st Human trafficking using coercion for labor and services of an unauthorized alien adult. 3422 787.06(3)(e)1. 1st Human trafficking for labor and services by the transfer or
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June 28, 2019 Criminal Procedure Rules Committee 456 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
transport of a child from outside Florida to within the state. 3423 787.06(3)(f)2. 1st Human trafficking using coercion for commercial sexual activity by the transfer or transport of any adult from outside Florida to within the state. 3424 790.161(3) 1st Discharging a destructive device which results in bodily harm or property damage. 3425 794.011(5)(a) 1st Sexual battery; victim 12 years of age or older but younger than 18 years; offender 18 years or older; offender does not use physical force likely to cause serious injury. 3426 794.011(5)(b) 2nd Sexual battery; victim and offender 18 years of age or older; offender does not use
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June 28, 2019 Criminal Procedure Rules Committee 457 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
physical force likely to cause serious injury. 3427 794.011(5)(c) 2nd Sexual battery; victim 12 years of age or older; offender younger than 18 years; offender does not use physical force likely to cause injury. 3428 794.011(5)(d) 1st Sexual battery; victim 12 years of age or older; offender does not use physical force likely to cause serious injury; prior conviction for specified sex offense. 3429 794.08(3) 2nd Female genital mutilation, removal of a victim younger than 18 years of age from this state. 3430 800.04(4)(b) 2nd Lewd or lascivious battery. 3431 800.04(4)(c) 1st Lewd or lascivious battery; offender 18 years of age or
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June 28, 2019 Criminal Procedure Rules Committee 458 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
older; prior conviction for specified sex offense. 3432 806.01(1) 1st Maliciously damage dwelling or structure by fire or explosive, believing person in structure. 3433 810.02(2)(a) 1st,PBL Burglary with assault or battery. 3434 810.02(2)(b) 1st,PBL Burglary; armed with explosives or dangerous weapon. 3435 810.02(2)(c) 1st Burglary of a dwelling or structure causing structural damage or $1,000 or more property damage. 3436 812.014(2)(a)2. 1st Property stolen; cargo valued at $50,000 or more, grand theft in 1st degree. 3437 812.13(2)(b) 1st Robbery with a weapon. 3438 812.135(2)(c) 1st Home-invasion robbery, no
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June 28, 2019 Criminal Procedure Rules Committee 459 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
firearm, deadly weapon, or other weapon. 3439 817.505(4)(c) 1st Patient brokering; 20 or more patients. 3440 817.535(2)(b) 2nd Filing false lien or other unauthorized document; second or subsequent offense. 3441 817.535(3)(a) 2nd Filing false lien or other unauthorized document; property owner is a public officer or employee. 3442 817.535(4)(a)1. 2nd Filing false lien or other unauthorized document; defendant is incarcerated or under supervision. 3443 817.535(5)(a) 2nd Filing false lien or other unauthorized document; owner of the property incurs financial loss as a result of the false instrument.
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June 28, 2019 Criminal Procedure Rules Committee 460 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
3444 817.568(6) 2nd Fraudulent use of personal identification information of an individual under the age of 18. 3445 817.611(2)(c) 1st Traffic in or possess 50 or more counterfeit credit cards or related documents. 3446 825.102(2) 1st Aggravated abuse of an elderly person or disabled adult. 3447 825.1025(2) 2nd Lewd or lascivious battery upon an elderly person or disabled adult. 3448 825.103(3)(a) 1st Exploiting an elderly person or disabled adult and property is valued at $50,000 or more. 3449 837.02(2) 2nd Perjury in official proceedings relating to prosecution of a capital felony. 3450
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June 28, 2019 Criminal Procedure Rules Committee 461 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
837.021(2) 2nd Making contradictory statements in official proceedings relating to prosecution of a capital felony. 3451 860.121(2)(c) 1st Shooting at or throwing any object in path of railroad vehicle resulting in great bodily harm. 3452 860.16 1st Aircraft piracy. 3453 893.13(1)(b) 1st Sell or deliver in excess of 10 grams of any substance specified in s. 893.03(1)(a) or (b). 3454 893.13(2)(b) 1st Purchase in excess of 10 grams of any substance specified in s. 893.03(1)(a) or (b). 3455 893.13(6)(c) 1st Possess in excess of 10 grams of any substance specified in s. 893.03(1)(a) or (b). 3456
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June 28, 2019 Criminal Procedure Rules Committee 462 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
893.135(1)(a)2. 1st Trafficking in cannabis, more than 2,000 lbs., less than 10,000 lbs. 3457 893.135 1st Trafficking in cocaine, more (1)(b)1.b. than 200 grams, less than 400 grams. 3458 893.135 1st Trafficking in illegal drugs, (1)(c)1.b. more than 14 grams, less than 28 grams. 3459 893.135 1st Trafficking in hydrocodone, 100 (1)(c)2.c. 50 grams or more, less than 300 200 grams. 3460 893.135 1st Trafficking in oxycodone, 25 (1)(c)3.c. grams or more, less than 100 grams. 3461 893.135 1st Trafficking in fentanyl, 14 (1)(c)4.b.(II) grams or more, less than 28 grams. 3462 893.135 1st Trafficking in phencyclidine,
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June 28, 2019 Criminal Procedure Rules Committee 463 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
(1)(d)1.b. 200 grams or more, less than 400 grams. 3463 893.135 1st Trafficking in methaqualone, 5 (1)(e)1.b. kilograms or more, less than 25 kilograms. 3464 893.135 1st Trafficking in amphetamine, 28 (1)(f)1.b. grams or more, less than 200 grams. 3465 893.135 1st Trafficking in flunitrazepam, (1)(g)1.b. 14 grams or more, less than 28 grams. 3466 893.135 1st Trafficking in gamma- (1)(h)1.b. hydroxybutyric acid (GHB), 5 kilograms or more, less than 10 kilograms. 3467 893.135 1st Trafficking in 1,4-Butanediol, (1)(j)1.b. 5 kilograms or more, less than 10 kilograms. 3468 893.135 1st Trafficking in Phenethylamines,
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June 28, 2019 Criminal Procedure Rules Committee 464 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
(1)(k)2.b. 200 grams or more, less than 400 grams. 3469 893.135 1st Trafficking in synthetic (1)(m)2.c. cannabinoids, 1,000 grams or more, less than 30 kilograms. 3470 893.135 1st Trafficking in n-benzyl (1)(n)2.b. phenethylamines, 100 grams or more, less than 200 grams. 3471 893.1351(3) 1st Possession of a place used to manufacture controlled substance when minor is present or resides there. 3472 895.03(1) 1st Use or invest proceeds derived from pattern of racketeering activity. 3473 895.03(2) 1st Acquire or maintain through racketeering activity any interest in or control of any enterprise or real property. 3474
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June 28, 2019 Criminal Procedure Rules Committee 465 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
895.03(3) 1st Conduct or participate in any enterprise through pattern of racketeering activity. 3475 896.101(5)(b) 2nd Money laundering, financial transactions totaling or exceeding $20,000, but less than $100,000. 3476 896.104(4)(a)2. 2nd Structuring transactions to evade reporting or registration requirements, financial transactions totaling or exceeding $20,000 but less than $100,000. 3477 3478 (i) LEVEL 9 3479 Florida Felony Statute Degree Description 3480 316.193 1st DUI manslaughter; failing to (3)(c)3.b. render aid or give information. 3481 327.35 1st BUI manslaughter; failing to
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June 28, 2019 Criminal Procedure Rules Committee 466 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
(3)(c)3.b. render aid or give information. 3482 409.920 1st Medicaid provider fraud; (2)(b)1.c. $50,000 or more. 3483 499.0051(8) 1st Knowing sale or purchase of contraband prescription drugs resulting in great bodily harm. 3484 560.123(8)(b)3. 1st Failure to report currency or payment instruments totaling or exceeding $100,000 by money transmitter. 3485 560.125(5)(c) 1st Money transmitter business by unauthorized person, currency, or payment instruments totaling or exceeding $100,000. 3486 655.50(10)(b)3. 1st Failure to report financial transactions totaling or exceeding $100,000 by financial institution. 3487 775.0844 1st Aggravated white collar crime.
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June 28, 2019 Criminal Procedure Rules Committee 467 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
3488 782.04(1) 1st Attempt, conspire, or solicit to commit premeditated murder. 3489 782.04(3) 1st,PBL Accomplice to murder in connection with arson, sexual battery, robbery, burglary, aggravated fleeing or eluding with serious bodily injury or death, and other specified felonies. 3490 782.051(1) 1st Attempted felony murder while perpetrating or attempting to perpetrate a felony enumerated in s. 782.04(3). 3491 782.07(2) 1st Aggravated manslaughter of an elderly person or disabled adult. 3492 787.01(1)(a)1. 1st,PBL Kidnapping; hold for ransom or reward or as a shield or hostage. 3493
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June 28, 2019 Criminal Procedure Rules Committee 468 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
787.01(1)(a)2. 1st,PBL Kidnapping with intent to commit or facilitate commission of any felony. 3494 787.01(1)(a)4. 1st,PBL Kidnapping with intent to interfere with performance of any governmental or political function. 3495 787.02(3)(a) 1st,PBL False imprisonment; child under age 13; perpetrator also commits aggravated child abuse, sexual battery, or lewd or lascivious battery, molestation, conduct, or exhibition. 3496 787.06(3)(c)1. 1st Human trafficking for labor and services of an unauthorized alien child. 3497 787.06(3)(d) 1st Human trafficking using coercion for commercial sexual activity of an unauthorized adult alien.
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June 28, 2019 Criminal Procedure Rules Committee 469 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
3498 787.06(3)(f)1. 1st,PBL Human trafficking for commercial sexual activity by the transfer or transport of any child from outside Florida to within the state. 3499 790.161 1st Attempted capital destructive device offense. 3500 790.166(2) 1st,PBL Possessing, selling, using, or attempting to use a weapon of mass destruction. 3501 794.011(2) 1st Attempted sexual battery; victim less than 12 years of age. 3502 794.011(2) Life Sexual battery; offender younger than 18 years and commits sexual battery on a person less than 12 years. 3503 794.011(4)(a) 1st,PBL Sexual battery, certain circumstances; victim 12 years
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June 28, 2019 Criminal Procedure Rules Committee 470 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
of age or older but younger than 18 years; offender 18 years or older. 3504 794.011(4)(b) 1st Sexual battery, certain circumstances; victim and offender 18 years of age or older. 3505 794.011(4)(c) 1st Sexual battery, certain circumstances; victim 12 years of age or older; offender younger than 18 years. 3506 794.011(4)(d) 1st,PBL Sexual battery, certain circumstances; victim 12 years of age or older; prior conviction for specified sex offenses. 3507 794.011(8)(b) 1st,PBL Sexual battery; engage in sexual conduct with minor 12 to 18 years by person in familial or custodial authority. 3508
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June 28, 2019 Criminal Procedure Rules Committee 471 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
794.08(2) 1st Female genital mutilation; victim younger than 18 years of age. 3509 800.04(5)(b) Life Lewd or lascivious molestation; victim less than 12 years; offender 18 years or older. 3510 812.13(2)(a) 1st,PBL Robbery with firearm or other deadly weapon. 3511 812.133(2)(a) 1st,PBL Carjacking; firearm or other deadly weapon. 3512 812.135(2)(b) 1st Home-invasion robbery with weapon. 3513 817.535(3)(b) 1st Filing false lien or other unauthorized document; second or subsequent offense; property owner is a public officer or employee. 3514 817.535(4)(a)2. 1st Filing false claim or other unauthorized document;
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June 28, 2019 Criminal Procedure Rules Committee 472 F L O R I D A H O U S E O F R E P RESENTATIVE S
CS/HB 7125 2019
defendant is incarcerated or under supervision. 3515 817.535(5)(b) 1st Filing false lien or other unauthorized document; second or subsequent offense; owner of the property incurs financial loss as a result of the false instrument. 3516 817.568(7) 2nd, Fraudulent use of personal PBL identification information of an individual under the age of 18 by his or her parent, legal guardian, or person exercising custodial authority. 3517 827.03(2)(a) 1st Aggravated child abuse. 3518 847.0145(1) 1st Selling, or otherwise transferring custody or control, of a minor. 3519 847.0145(2) 1st Purchasing, or otherwise obtaining custody or control,
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of a minor. 3520 859.01 1st Poisoning or introducing bacteria, radioactive materials, viruses, or chemical compounds into food, drink, medicine, or water with intent to kill or injure another person. 3521 893.135 1st Attempted capital trafficking offense. 3522 893.135(1)(a)3. 1st Trafficking in cannabis, more than 10,000 lbs. 3523 893.135 1st Trafficking in cocaine, more (1)(b)1.c. than 400 grams, less than 150 kilograms. 3524 893.135 1st Trafficking in illegal drugs, (1)(c)1.c. more than 28 grams, less than 30 kilograms. 3525 893.135 1st Trafficking in hydrocodone, 300
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(1)(c)2.d. 200 grams or more, less than 30 kilograms. 3526 893.135 1st Trafficking in oxycodone, 100 (1)(c)3.d. grams or more, less than 30 kilograms. 3527 893.135 1st Trafficking in fentanyl, 28 grams or more. (1)(c)4.b.(III) 3528 893.135 1st Trafficking in phencyclidine, (1)(d)1.c. 400 grams or more. 3529 893.135 1st Trafficking in methaqualone, 25 (1)(e)1.c. kilograms or more. 3530 893.135 1st Trafficking in amphetamine, 200 (1)(f)1.c. grams or more. 3531 893.135 1st Trafficking in gamma- (1)(h)1.c. hydroxybutyric acid (GHB), 10 kilograms or more. 3532 893.135 1st Trafficking in 1,4-Butanediol,
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(1)(j)1.c. 10 kilograms or more. 3533 893.135 1st Trafficking in Phenethylamines, (1)(k)2.c. 400 grams or more. 3534 893.135 1st Trafficking in synthetic (1)(m)2.d. cannabinoids, 30 kilograms or more. 3535 893.135 1st Trafficking in n-benzyl (1)(n)2.c. phenethylamines, 200 grams or more. 3536 896.101(5)(c) 1st Money laundering, financial instruments totaling or exceeding $100,000. 3537 896.104(4)(a)3. 1st Structuring transactions to evade reporting or registration requirements, financial transactions totaling or exceeding $100,000. 3538 3539 (j) LEVEL 10 3540
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Florida Felony Statute Degree Description 3541 499.0051(9) 1st Knowing sale or purchase of contraband prescription drugs resulting in death. 3542 782.04(2) 1st,PBL Unlawful killing of human; act is homicide, unpremeditated. 3543 782.07(3) 1st Aggravated manslaughter of a child. 3544 787.01(1)(a)3. 1st,PBL Kidnapping; inflict bodily harm upon or terrorize victim. 3545 787.01(3)(a) Life Kidnapping; child under age 13, perpetrator also commits aggravated child abuse, sexual battery, or lewd or lascivious battery, molestation, conduct, or exhibition. 3546 787.06(3)(g) Life Human trafficking for commercial sexual activity of a
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child under the age of 18 or mentally defective or incapacitated person. 3547 787.06(4)(a) Life Selling or buying of minors into human trafficking. 3548 794.011(3) Life Sexual battery; victim 12 years or older, offender uses or threatens to use deadly weapon or physical force to cause serious injury. 3549 812.135(2)(a) 1st,PBL Home-invasion robbery with firearm or other deadly weapon. 3550 876.32 1st Treason against the state. 3551 3552 Section 47. Section 943.0578, Florida Statutes, is created 3553 to read: 3554 943.0578 Lawful Self-Defense Expunction.— 3555 (1) Notwithstanding the eligibility requirements defined 3556 in s. 943.0585(1) and (2), the department shall issue a 3557 certificate of eligibility for expunction under this section to 3558 a person who is the subject of a criminal history record if that
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3559 person has obtained, and submitted to the department, on a form 3560 provided by the department, a written, certified statement from 3561 the appropriate state attorney or statewide prosecutor which 3562 states whether an information, indictment, or other charging 3563 document was not filed or was dismissed by the state attorney, 3564 or dismissed by the court, because it was found that the person 3565 acted in lawful self-defense pursuant to chapter 776. 3566 (2) Each petition to expunge a criminal history record 3567 pursuant to this section must be accompanied by: 3568 (a) A valid certificate of eligibility for expunction 3569 issued by the department pursuant to this section. 3570 (b) The petitioner's sworn statement attesting that the 3571 petitioner is eligible for such an expunction to the best of his 3572 or her knowledge or belief. 3573 3574 Any person who knowingly provides false information on such 3575 sworn statement to the court commits a felony of the third 3576 degree, punishable as provided in s. 775.082, s. 775.083, or s. 3577 775.084. 3578 (3) This section does not confer any right to the 3579 expunction of a criminal history record, and any request for 3580 expunction of a criminal history record may be denied at the 3581 discretion of the court. 3582 (4) Section 943.0585(5) and (6) shall apply to expunction 3583 ordered under this section.
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3584 (5) The department shall adopt rules to establish 3585 procedures for applying for and issuing a certificate of 3586 eligibility for expunction under this section. 3587 Section 48. The catchline of section 943.0581, Florida 3588 Statutes, is amended, and the section is republished, to read: 3589 943.0581 Administrative expunction for arrests made 3590 contrary to law or by mistake.— 3591 (1) Notwithstanding any law dealing generally with the 3592 preservation and destruction of public records, the department 3593 may adopt a rule pursuant to chapter 120 for the administrative 3594 expunction of any nonjudicial record of an arrest of a minor or 3595 an adult made contrary to law or by mistake. 3596 (2) A law enforcement agency shall apply to the department 3597 in the manner prescribed by rule for the administrative 3598 expunction of any nonjudicial record of any arrest of a minor or 3599 an adult who is subsequently determined by the agency, at its 3600 discretion, or by the final order of a court of competent 3601 jurisdiction, to have been arrested contrary to law or by 3602 mistake. 3603 (3) An adult or, in the case of a minor child, the parent 3604 or legal guardian of the minor child, may apply to the 3605 department in the manner prescribed by rule for the 3606 administrative expunction of any nonjudicial record of an arrest 3607 alleged to have been made contrary to law or by mistake, 3608 provided that the application is supported by the endorsement of
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3609 the head of the arresting agency or his or her designee or the 3610 state attorney of the judicial circuit in which the arrest 3611 occurred or his or her designee. 3612 (4) An application for administrative expunction shall 3613 include the date and time of the arrest, the name of the person 3614 arrested, the offender-based tracking system (OBTS) number, and 3615 the crime or crimes charged. The application shall be on the 3616 submitting agency's letterhead and shall be signed by the head 3617 of the submitting agency or his or her designee. 3618 (5) If the person was arrested on a warrant, capias, or 3619 pickup order, a request for an administrative expunction may be 3620 made by the sheriff of the county in which the warrant, capias, 3621 or pickup order was issued or his or her designee or by the 3622 state attorney of the judicial circuit in which the warrant, 3623 capias, or pickup order was issued or his or her designee. 3624 (6) An application or endorsement under this section is 3625 not admissible as evidence in any judicial or administrative 3626 proceeding and may not be construed in any way as an admission 3627 of liability in connection with an arrest. 3628 Section 49. Section 943.0584, Florida Statutes, is created 3629 to read: 3630 943.0584 Criminal history records ineligible for court- 3631 ordered expunction or court-ordered sealing.— 3632 (1) As used in this section, the term "conviction" means a 3633 determination of guilt which is the result of a trial or the
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3634 entry of a plea of guilty or nolo contendere, regardless of 3635 whether adjudication is withheld, or if the defendant was a 3636 minor, a finding that the defendant committed or pled guilty or 3637 nolo contendere to committing a delinquent act, regardless of 3638 whether adjudication of delinquency is withheld. 3639 (2) A criminal history record is ineligible for a 3640 certificate of eligibility for expunction or a court-ordered 3641 expunction pursuant to s. 943.0585 or a certificate of 3642 eligibility for sealing or a court-ordered sealing pursuant to 3643 s. 943.059 if the record is a conviction, information, 3644 indictment, notice to appear, or arrest for any of the following 3645 offenses: 3646 (a) Sexual misconduct, as defined in s. 393.135, s. 3647 394.4593, or s. 916.1075; 3648 (b) Illegal use of explosives, as defined in chapter 552; 3649 (c) Terrorism, as defined in s. 775.30; 3650 (d) Murder, as defined in s. 782.04, s. 782.065, or s. 3651 782.09; 3652 (e) Manslaughter or homicide, as defined in s. 782.07, s. 3653 782.071, or s. 782.072; 3654 (f) Assault, or battery as defined in ss. 784.011 and 3655 784.03, respectively, of one family or household member by 3656 another family or household member, as defined in s. 741.28(3); 3657 (g) Aggravated assault, as defined in s. 784.021; 3658 (h) Felony battery, domestic battery by strangulation or
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3659 aggravated battery, as defined in s. 784.03, s. 784.041, or s. 3660 784.045; 3661 (i) Stalking or aggravated stalking, as defined in s. 3662 784.048; 3663 (j) Luring or enticing a child, as defined in s. 787.025; 3664 (k) Human trafficking, as defined in s. 787.06; 3665 (l) Kidnapping or false imprisonment, as defined in s. 3666 787.01 or s. 787.02; 3667 (m) Any offense defined in chapter 794; 3668 (n) Procuring a person under the age of 18 for 3669 prostitution, as defined in former s. 796.03; 3670 (o) Lewd or lascivious offenses committed upon or in the 3671 presence of persons less than 16 years of age, as defined in s. 3672 800.04; 3673 (p) Arson, as defined in s. 806.01; 3674 (q) Burglary of a dwelling, as defined in s. 810.02; 3675 (r) Voyeurism or video voyeurism, as defined in s. 810.14 3676 or s. 810.145; 3677 (s) Robbery or robbery by sudden snatching, as defined in 3678 s. 812.13 or s. 812.131; 3679 (t) Carjacking, as defined in s. 812.133; 3680 (u) Home invasion robbery, as defined in s. 812.135; 3681 (v) A violation of the Florida Communications Fraud Act, 3682 s. 817.034; 3683 (w) Abuse of an elderly person or disabled adult, or
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3684 aggravated abuse of an elderly person or disabled adult, as 3685 defined in s. 825.102; 3686 (x) Lewd or lascivious offenses committed upon or in the 3687 presence of an elderly person or disabled person, as defined in 3688 s. 825.1025; 3689 (y) Child abuse or aggravated child abuse, as defined in 3690 s. 827.03; 3691 (z) Sexual performance by a child, as defined in s. 3692 827.071; 3693 (aa) Any offense defined in chapter 839; 3694 (bb) Certain acts in connection with obscenity, as defined 3695 in s. 847.0133; 3696 (cc) Any offense defined in s. 847.0135; 3697 (dd) Selling or buying of minors, as defined in s. 3698 847.0145; 3699 (ee) Aircraft piracy, as defined in s. 860.16; 3700 (ff) Manufacturing a controlled substance in violation of 3701 chapter 893; 3702 (gg) Drug trafficking, as defined in s. 893.135; 3703 (hh) Any violation specified as a predicate offense for 3704 registration as a sexual predator pursuant to s. 775.21, or 3705 sexual offender pursuant to s. 943.0435, without regard to 3706 whether that offense alone is sufficient to require such 3707 registration. 3708 Section 50. Section 943.0585, Florida Statutes, is amended
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3709 to read: 3710 (Substantial rewording of section. See s. 943.0585, F.S., 3711 for present text.) 3712 943.0585 Court-ordered expunction of criminal history 3713 records.— 3714 (1) ELIGIBILITY.—A person is eligible to petition a court 3715 to expunge a criminal history record when: 3716 (a) An indictment, information, or other charging document 3717 was not filed or issued in the case giving rise to the criminal 3718 history record. 3719 (b) If an indictment, information, or other charging 3720 document was filed or issued in the case giving rise to the 3721 criminal history record, it was dismissed or nolle prosequi by 3722 the state attorney or statewide prosecutor, or was dismissed by 3723 a court of competent jurisdiction, or a judgment of acquittal 3724 was rendered by a judge, or a verdict of not guilty was rendered 3725 by a judge or jury. 3726 (c) The person is not seeking to expunge a criminal 3727 history record that is ineligible for court-ordered expunction 3728 pursuant to s. 943.0584. 3729 (d) The person has never, as of the date the application 3730 for a certificate of expunction is filed, been adjudicated 3731 guilty in this state of a criminal offense or been adjudicated 3732 delinquent in this state for committing any felony or any of the 3733 following misdemeanors, unless the record of such adjudication
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3734 of delinquency has been expunged pursuant to s. 943.0515: 3735 1. Assault, as defined in s. 784.011; 3736 2. Battery, as defined in s. 784.03; 3737 3. Assault on a law enforcement officer, a firefighter, or 3738 other specified officers, as defined in s. 784.07(2)(a); 3739 4. Carrying a concealed weapon, as defined in s. 3740 790.01(1); 3741 5. Open carrying of a weapon, as defined in s. 790.053; 3742 6. Unlawful possession or discharge of a weapon or firearm 3743 at a school-sponsored event or on school property, as defined in 3744 s. 790.115; 3745 7. Unlawful use of destructive devices or bombs, as 3746 defined in s. 790.1615(1); 3747 8. Unlawful possession of a firearm, as defined in s. 3748 790.22(5); 3749 9. Exposure of sexual organs, as defined in s. 800.03; 3750 10. Arson, as defined in s. 806.031(1); 3751 11. Petit theft, as defined in s. 812.014(3); 3752 12. Neglect of a child, as defined in s. 827.03(1)(e); or 3753 13. Cruelty to animals, as defined in s. 828.12(1). 3754 (e) The person has not been adjudicated guilty of, or 3755 adjudicated delinquent for committing, any of the acts stemming 3756 from the arrest or alleged criminal activity to which the 3757 petition pertains. 3758 (f) The person is no longer under court supervision
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3759 applicable to the disposition of arrest or alleged criminal 3760 activity to which the petition to expunge pertains. 3761 (g) The person has never secured a prior sealing or 3762 expunction of a criminal history record under this section, s. 3763 943.0459, former s. 893.14, former s. 901.33, or former s. 3764 943.058, unless expunction is sought of a criminal history 3765 record previously sealed for 10 years pursuant to paragraph (h) 3766 and the record is otherwise eligible for expunction. 3767 (h) The person has previously obtained a court order 3768 sealing the criminal history record under this section, former 3769 s. 893.14, former s. 901.33, or former s. 943.058 for a minimum 3770 of 10 years because adjudication was withheld or because all 3771 charges related to the arrest or alleged criminal activity to 3772 which the petition to expunge pertains were not dismissed before 3773 trial, without regard to whether the outcome of the trial was 3774 other than an adjudication of guilt. The requirement for the 3775 record to have previously been sealed for a minimum of 10 years 3776 does not apply when a plea was not entered or all charges 3777 related to the arrest or alleged criminal activity to which the 3778 petition to expunge pertains were dismissed before trial or a 3779 judgment of acquittal was rendered by a judge or a verdict of 3780 not guilty was rendered by a judge or jury. 3781 (2) CERTIFICATE OF ELIGIBILITY.—Before petitioning a court 3782 to expunge a criminal history record, a person seeking to 3783 expunge a criminal history record shall apply to the department
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3784 for a certificate of eligibility for expunction. The department 3785 shall adopt rules to establish procedures for applying for and 3786 issuing a certificate of eligibility for expunction. 3787 (a) The department shall issue a certificate of 3788 eligibility for expunction to a person who is the subject of a 3789 criminal history record if that person: 3790 1. Satisfies the eligibility criteria in paragraphs 3791 (1)(a)-(h) and is not ineligible under s. 943.0584. 3792 2. Has submitted to the department a written certified 3793 statement from the appropriate state attorney or statewide 3794 prosecutor which confirms the criminal history record complies 3795 with the criteria in paragraph (1)(a) or paragraph (1)(b) and 3796 (c). 3797 3. Has submitted to the department a certified copy of the 3798 disposition of the charge to which the petition to expunge 3799 pertains. 3800 4. Remits a $75 processing fee to the department for 3801 placement in the Department of Law Enforcement Operating Trust 3802 Fund, unless the executive director waives such fee. 3803 (b) A certificate of eligibility for expunction is valid 3804 for 12 months after the date stamped on the certificate when 3805 issued by the department. After that time, the petitioner must 3806 reapply to the department for a new certificate of eligibility. 3807 The petitioner's status and the law in effect at the time of the 3808 renewal application determines the petitioner's eligibility.
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3809 (3) PETITION.—Each petition to expunge a criminal history 3810 record must be accompanied by: 3811 (a)_ A valid certificate of eligibility issued by the 3812 department. 3813 (b) The petitioner's sworn statement that he or she: 3814 1. Satisfies the eligibility requirements for expunction 3815 in subsection (1). 3816 2. Is eligible for expunction to the best of his or her 3817 knowledge and does not have any other petition to seal or 3818 expunge a criminal history record pending before any court. 3819 3820 A person who knowingly provides false information on such sworn 3821 statement commits a felony of the third degree, punishable as 3822 provided in s. 775.082, s. 775.083, or s. 775.084. 3823 (4) COURT AUTHORITY.— 3824 (a) The courts of this state have jurisdiction over their 3825 own procedures, including the maintenance, expunction, and 3826 correction of judicial records containing criminal history 3827 information to the extent that such procedures are not 3828 inconsistent with the conditions, responsibilities, and duties 3829 established by this section. 3830 (b) A court of competent jurisdiction may order a criminal 3831 justice agency to expunge the criminal history record of a minor 3832 or an adult who complies with the requirements of this section. 3833 The court shall not order a criminal justice agency to expunge a
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3834 criminal history record until the person seeking to expunge a 3835 criminal history record has applied for and received a 3836 certificate of eligibility under subsection (2). 3837 (c) The court may only order expunction of a criminal 3838 history record pertaining to one arrest or one incident of 3839 alleged criminal activity, except that the court may order the 3840 expunction of a criminal history record pertaining to more than 3841 one arrest if the additional arrests directly relate to the 3842 original arrest. If the court intends to order the expunction of 3843 records pertaining to such additional arrests, such intent must 3844 be specified in the order. A criminal justice agency may not 3845 expunge any record pertaining to such additional arrests if the 3846 order to expunge does not articulate the intention of the court 3847 to expunge a record pertaining to more than one arrest. This 3848 section does not prevent the court from ordering the expunction 3849 of only a portion of a criminal history record pertaining to one 3850 arrest or one incident of alleged criminal activity. 3851 (d) Notwithstanding any law to the contrary, a criminal 3852 justice agency may comply with laws, court orders, and official 3853 requests of other jurisdictions relating to expunction, 3854 correction, or confidential handling of criminal history records 3855 or information derived therefrom. 3856 (e) This section does not confer any right to expunction 3857 of any criminal history record, and any request for expunction 3858 of a criminal history record may be denied at the sole
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3859 discretion of the court. 3860 (5) PROCESSING OF A PETITION OR AN ORDER.— 3861 (a) In judicial proceedings under this section, a copy of 3862 the completed petition to expunge shall be served upon the 3863 appropriate state attorney or the statewide prosecutor and upon 3864 the arresting agency; however, it is not necessary to make any 3865 agency other than the state a party. The appropriate state 3866 attorney or the statewide prosecutor and the arresting agency 3867 may respond to the court regarding the completed petition to 3868 expunge. 3869 (b) If relief is granted by the court, the clerk of the 3870 court shall certify copies of the order to the appropriate state 3871 attorney or the statewide prosecutor and the arresting agency. 3872 The arresting agency shall forward the order to any other agency 3873 to which the arresting agency disseminated the criminal history 3874 record information to which the order pertains. The department 3875 shall forward the order to expunge to the Federal Bureau of 3876 Investigation. The clerk of the court shall certify a copy of 3877 the order to any other agency which the records of the court 3878 reflect has received the criminal history record from the court. 3879 (c) The department or any other criminal justice agency is 3880 not required to act on an order to expunge entered by a court 3881 when such order does not comply with the requirements of this 3882 section. Upon receipt of such an order, the department must 3883 notify the issuing court, the appropriate state attorney or
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3884 statewide prosecutor, the petitioner or the petitioner's 3885 attorney, and the arresting agency of the reason for 3886 noncompliance. The appropriate state attorney or statewide 3887 prosecutor shall take action within 60 days to correct the 3888 record and petition the court to void the order. No cause of 3889 action, including contempt of court, shall arise against any 3890 criminal justice agency for failure to comply with an order to 3891 expunge when the petitioner for such order failed to obtain the 3892 certificate of eligibility as required by this section or such 3893 order does not otherwise comply with the requirements of this 3894 section. 3895 (6) EFFECT OF EXPUNCTION ORDER.— 3896 (a) Any criminal history record of a minor or an adult 3897 which is ordered expunged by a court of competent jurisdiction 3898 pursuant to this section must be physically destroyed or 3899 obliterated by any criminal justice agency having custody of 3900 such record; except that any criminal history record in the 3901 custody of the department must be retained in all cases. A 3902 criminal history record ordered expunged that is retained by the 3903 department is confidential and exempt from the provisions of s. 3904 119.07(1) and s. 24(a), Art. I of the State Constitution and not 3905 available to any person or entity except upon order of a court 3906 of competent jurisdiction. A criminal justice agency may retain 3907 a notation indicating compliance with an order to expunge. 3908 (b) The person who is the subject of a criminal history
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3909 record that is expunged under this section or under other 3910 provisions of law, including former s. 893.14, former s. 901.33, 3911 and former s. 943.058, may lawfully deny or fail to acknowledge 3912 the arrests covered by the expunged record, except when the 3913 subject of the record: 3914 1. Is a candidate for employment with a criminal justice 3915 agency; 3916 2. Is a defendant in a criminal prosecution; 3917 3. Concurrently or subsequently petitions for relief under 3918 this section, s. 943.0583, or s. 943.059; 3919 4. Is a candidate for admission to The Florida Bar; 3920 5. Is seeking to be employed or licensed by or to contract 3921 with the Department of Children and Families, the Division of 3922 Vocational Rehabilitation within the Department of Education, 3923 the Agency for Health Care Administration, the Agency for 3924 Persons with Disabilities, the Department of Health, the 3925 Department of Elderly Affairs, or the Department of Juvenile 3926 Justice or to be employed or used by such contractor or licensee 3927 in a sensitive position having direct contact with children, the 3928 disabled, or the elderly; 3929 6. Is seeking to be employed or licensed by the Department 3930 of Education, any district school board, any university 3931 laboratory school, any charter school, any private or parochial 3932 school, or any local governmental entity that licenses child 3933 care facilities;
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3934 7. Is seeking to be licensed by the Division of Insurance 3935 Agent and Agency Services within the Department of Financial 3936 Services; or 3937 8. Is seeking to be appointed as a guardian pursuant to s. 3938 744.3125. 3939 (c) Subject to the exceptions in paragraph (b), a person 3940 who has been granted an expunction under this section, former s. 3941 893.14, former s. 901.33, or former s. 943.058 may not be held 3942 under any provision of law of this state to commit perjury or to 3943 be otherwise liable for giving a false statement by reason of 3944 such person's failure to recite or acknowledge an expunged 3945 criminal history record. 3946 (d) Information relating to the existence of an expunged 3947 criminal history record which is provided in accordance with 3948 paragraph (a) is confidential and exempt from the provisions of 3949 s. 119.07(1) and s. 24(a), Art. I of the State Constitution, 3950 except that the department shall disclose the existence of a 3951 criminal history record ordered expunged to the entities set 3952 forth in subparagraphs (b)1., 4., 5., 6., 7., and 8. for their 3953 respective licensing, access authorization, and employment 3954 purposes, and to criminal justice agencies for their respective 3955 criminal justice purposes. It is unlawful for any employee of an 3956 entity set forth in subparagraph (b)1., 4., 5., 6., 7., or 8. to 3957 disclose information relating to the existence of an expunged 3958 criminal history record of a person seeking employment, access
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3959 authorization, or licensure with such entity or contractor, 3960 except to the person to whom the criminal history record relates 3961 or to persons having direct responsibility for employment, 3962 access authorization, or licensure decisions. Any person who 3963 violates this paragraph commits a misdemeanor of the first 3964 degree, punishable as provided in s. 775.082 or s. 775.083. 3965 Section 51. Section 943.059, Florida Statutes, is amended 3966 to read: 3967 (Substantial rewording of section. See s. 943.059, F.S., 3968 for present text.) 3969 943.059 Court-ordered sealing of criminal history 3970 records.— 3971 (1) ELIGIBILITY.—A person is eligible to petition a court 3972 to seal a criminal history record when: 3973 (a) The criminal history record is not ineligible for 3974 court-ordered sealing under s. 943.0584; 3975 (b) The person has never, before the date the application 3976 for a certificate of eligibility is filed, been adjudicated 3977 guilty in this state of a criminal offense, or been adjudicated 3978 delinquent in this state for committing any felony or any of the 3979 following misdemeanor offenses, unless the record of such 3980 adjudication of delinquency has been expunged pursuant to s. 3981 943.0515: 3982 1. Assault, as defined in s. 784.011; 3983 2. Battery, as defined in s. 784.03;
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3984 3. Assault on a law enforcement officer, a firefighter, or 3985 other specified officers, as defined in s. 784.07(2)(a); 3986 4. Carrying a concealed weapon, as defined in s. 3987 790.01(1); 3988 5. Open carrying of a weapon, as defined in s. 790.053; 3989 6. Unlawful possession or discharge of a weapon or firearm 3990 at a school-sponsored event or on school property, as defined in 3991 s. 790.115; 3992 7. Unlawful use of destructive devices or bombs, as 3993 defined in s. 790.1615(1); 3994 8. Unlawful possession of a firearm by a minor, as defined 3995 in s. 790.22(5); 3996 9. Exposure of sexual organs, as defined in s. 800.03; 3997 10. Arson, as defined in s. 806.031(1); 3998 11. Petit theft, as defined in s. 812.014(3); 3999 12. Neglect of a child, as defined in s. 827.03(1)(e); or 4000 13. Cruelty to animals, as defined in s. 828.12(10). 4001 (c) The person has not been adjudicated guilty of, or 4002 adjudicated delinquent for committing, any of the acts stemming 4003 from the arrest or alleged criminal activity to which the 4004 petition to seal pertains. 4005 (d) The person is no longer under court supervision 4006 applicable to the disposition of arrest or alleged criminal 4007 activity to which the petition to seal pertains. 4008 (e) The person has never secured a prior sealing or
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4009 expunction of a criminal history record under this section, s. 4010 943.0585, former s. 893.14, former s. 901.33, or former s. 4011 943.058. 4012 (2) CERTIFICATE OF ELIGIBILITY.—Before petitioning the 4013 court to seal a criminal history record, a person seeking to 4014 seal a criminal history record shall apply to the department for 4015 a certificate of eligibility for sealing. The department shall 4016 adopt rules relating to the application for and issuance of 4017 certificates of eligibility for sealing. 4018 (a) The department shall issue a certificate of 4019 eligibility for sealing to a person who is the subject of a 4020 criminal history record if that person: 4021 1. Satisfies the eligibility criteria in paragraphs 4022 (1)(a)-(e) and is not ineligible for court-ordered sealing under 4023 s. 943.0584. 4024 2. Has submitted to the department a certified copy of the 4025 disposition of charge to which the petition pertains. 4026 3. Remits a $75 processing fee to the department for 4027 placement in the Department of Law Enforcement Operating Trust 4028 Fund, unless the executive directors waives such fee. 4029 (b) A certificate of eligibility for sealing is valid for 4030 12 months after the date stamped on the certificate when issued 4031 by the department. After that time, the petitioner must reapply 4032 to the department for a new certificate of eligibility. The 4033 status of the applicant and the law in effect at the time of the
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4034 renewal application determines the petitioner's eligibility. 4035 (3) PETITION.—Each petition to a court to seal a criminal 4036 history record is complete only when accompanied by: 4037 (a) A valid certificate of eligibility issued by the 4038 department pursuant to this section. 4039 (b) The petitioner's sworn statement that the petitioner: 4040 1. Satisfies the eligibility requirements for sealing in 4041 subsection (1). 4042 2. Is eligible for sealing to the best of his or her 4043 knowledge and does not have any other petition to seal or 4044 expunge a criminal history record pending before any court. 4045 4046 Any person who knowingly provides false information on such 4047 sworn statement to the court commits a felony of the third 4048 degree, punishable as provided in s. 775.082, s. 775.083, or s. 4049 775.084. 4050 (4) COURT AUTHORITY.— 4051 (a) The courts of this state have jurisdiction over their 4052 own procedures, including the maintenance, sealing, and 4053 correction of judicial records containing criminal history 4054 information to the extent that such procedures are not 4055 inconsistent with the conditions, responsibilities, and duties 4056 established by this section. 4057 (b) Any court of competent jurisdiction may order a 4058 criminal justice agency to seal the criminal history record of a
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4059 minor or an adult who complies with the requirements of this 4060 section. The court shall not order a criminal justice agency to 4061 seal a criminal history record until the person seeking to seal 4062 a criminal history record has applied for and received a 4063 certificate of eligibility pursuant to subsection (2). 4064 (c) The court may only order the sealing of a criminal 4065 history record pertaining to one arrest or one incident of 4066 alleged criminal activity, except the court may order the 4067 sealing of a criminal history record pertaining to more than one 4068 arrest if the additional arrests directly relate to the original 4069 arrest. If the court intends to order the sealing of records 4070 pertaining to such additional arrests, such intent must be 4071 specified in the order. A criminal justice agency may not seal 4072 any record pertaining to such additional arrests if the order to 4073 seal does not articulate the intention of the court to seal a 4074 record pertaining to more than one arrest. This section does not 4075 prevent the court from ordering the sealing of only a portion of 4076 a criminal history record pertaining to one arrest or one 4077 incident of alleged criminal activity. 4078 (d) Notwithstanding any law to the contrary, a criminal 4079 justice agency may comply with laws, court orders, and official 4080 requests of other jurisdictions relating to sealing, correction, 4081 or confidential handling of criminal history records or 4082 information derived therefrom. 4083 (e) This section does not confer any right to the sealing
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4084 of any criminal history record, and any request for sealing of a 4085 criminal history record may be denied at the sole discretion of 4086 the court. 4087 (5) PROCESSING OF A PETITION OR ORDER.— 4088 (a) In judicial proceedings under this section, a copy of 4089 the completed petition to seal shall be served upon the 4090 appropriate state attorney or the statewide prosecutor and upon 4091 the arresting agency; however, it is not necessary to make any 4092 agency other than the state a party. The appropriate state 4093 attorney or the statewide prosecutor and the arresting agency 4094 may respond to the court regarding the completed petition to 4095 seal. 4096 (b) If relief is granted by the court, the clerk of the 4097 court shall certify copies of the order to the appropriate state 4098 attorney or the statewide prosecutor and the arresting agency. 4099 The arresting agency is responsible for forwarding the order to 4100 any other agency to which the arresting agency disseminated the 4101 criminal history record information to which the order pertains. 4102 The department shall forward the order to seal to the Federal 4103 Bureau of Investigation. The clerk of the court shall certify a 4104 copy of the order to any other agency which the records of the 4105 court reflect has received the criminal history record from the 4106 court. 4107 (c) The department or any other criminal justice agency is 4108 not required to act on an order to seal entered by a court when
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4109 such order does not comply with the requirements of this 4110 section. Upon receipt of such an order, the department must 4111 notify the issuing court, the appropriate state attorney or 4112 statewide prosecutor, the petitioner or the petitioner's 4113 attorney, and the arresting agency of the reason for 4114 noncompliance. The appropriate state attorney or statewide 4115 prosecutor shall take action within 60 days to correct the 4116 record and petition the court to void the order. No cause of 4117 action, including contempt of court, shall arise against any 4118 criminal justice agency for failure to comply with an order to 4119 seal when the petitioner for such order failed to obtain the 4120 certificate of eligibility as required by this section or such 4121 order does not otherwise comply with the requirements of this 4122 section. 4123 (6) EFFECT OF ORDER.— 4124 (a) A criminal history record of a minor or an adult which 4125 is ordered sealed by a court pursuant to this section is 4126 confidential and exempt from the provisions of s. 119.07(1) and 4127 s. 24(a), Art. I of the State Constitution and is available only 4128 to the following persons: 4129 1. The subject of the record; 4130 2. The subject's attorney; 4131 3. Criminal justice agencies for their respective criminal 4132 justice purposes, which include conducting a criminal history 4133 background check for approval of firearms purchases or transfers
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4134 as authorized by state or federal law; 4135 4. Judges in the state courts system for the purpose of 4136 assisting them in their case-related decision making 4137 responsibilities, as set forth in s. 943.053(5); or 4138 5. To those entities set forth in subparagraphs (b)1., 4., 4139 5., 6., 8., 9., and 10. for their respective licensing access 4140 authorization and employment purposes. 4141 (b) The subject of the criminal history record sealed 4142 under this section or under other provisions of law, including 4143 former s. 893.14, former s. 901.33, and former s. 943.058, may 4144 lawfully deny or fail to acknowledge the arrests covered by the 4145 sealed record, except when the subject of the record: 4146 1. Is a candidate for employment with a criminal justice 4147 agency; 4148 2. Is a defendant in a criminal prosecution; 4149 3. Concurrently or subsequently petitions for relief under 4150 this section, s. 943.0583 or s. 943.0585; 4151 4. Is a candidate for admission to the Florida Bar; 4152 5. Is seeking to be employed or licensed by or to contract 4153 with the Department of Children and Families, the Division of 4154 Vocational Rehabilitation within the Department of Education, 4155 the Agency for Health Care Administration, the Agency for 4156 Persons with Disabilities, the Department of Health, the 4157 Department of Elderly Affairs, or the Department of Juvenile 4158 Justice or to be employed or used by such contractor or licensee
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4159 in a sensitive position having direct contact with children, the 4160 disabled, or the elderly; 4161 6. Is seeking to be employed or licensed by the Department 4162 of Education, a district school board, a university laboratory 4163 school, a charter school, a private or parochial school, or a 4164 local governmental entity that licenses child care facilities; 4165 7. Is attempting to purchase a firearm from a licensed 4166 importer, licensed manufacturer, or licensed dealer and is 4167 subject to a criminal history check under state or federal law; 4168 8. Is seeking to be licensed by the Division of Insurance 4169 Agent and Agency Services within the Department of Financial 4170 Services; 4171 9. Is seeking to be appointed as a guardian pursuant to s. 4172 744.3125; or 4173 10. Is seeking to be licensed by the Bureau of License 4174 Issuance of the Division of Licensing within the Department of 4175 Agriculture and Consumer Services to carry a concealed weapon or 4176 concealed firearm. This subparagraph applies only in the 4177 determination of an applicant's eligibility under s. 790.06. 4178 (c) Subject to the exceptions in paragraph (b), a person 4179 who has been granted a sealing under this section, former s. 4180 893.14, former s. 901.33, or former s. 943.058 may not be held 4181 under any provision of law of this state to commit perjury or to 4182 be otherwise liable for giving a false statement by reason of 4183 such person's failure to recite or acknowledge a sealed criminal
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4184 history record. 4185 (d) Information relating to the existence of a sealed 4186 criminal record provided in accordance with paragraph (b) is 4187 confidential and exempt from s. 119.07(1) and s. 24(a), Art. I 4188 of the State Constitution, except that the department shall 4189 disclose the sealed criminal history record to the entities set 4190 forth in subparagraphs (b)1., 4., 5., 6., 8., 9., and 10., for 4191 their respective licensing, access authorization, and employment 4192 purposes. An employee of an entity set forth in subparagraph 4193 (b)1., 4., 5., 6., 8., 9., or 10. may not disclose information 4194 relating to the existence of a sealed criminal history record of 4195 a person seeking employment, access authorization, or licensure 4196 with such entity or contractor, except to the person to whom the 4197 criminal history record relates or to persons having direct 4198 responsibility for employment, access authorization, or 4199 licensure decisions. A person who violates this paragraph 4200 commits a misdemeanor of the first degree, punishable as 4201 provided in s. 775.082 or s. 775.083. 4202 Section 52. Section 943.0595, Florida Statutes, is created 4203 to read: 4204 943.0595 AUTOMATIC SEALING OF CRIMINAL HISTORY RECORDS.— 4205 (1) RULEMAKING.—Notwithstanding any law dealing generally 4206 with the preservation and destruction of public records, the 4207 department shall adopt rules addressing the automatic sealing of 4208 any criminal history record of a minor or adult described in
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4209 this section. 4210 (2) ELIGIBILITY.— 4211 (a) The department shall automatically seal a criminal 4212 history record that does not result from an indictment, 4213 information, or other charging document for a forcible felony 4214 defined in s. 776.08, when: 4215 1. An indictment, information, or other charging document 4216 was not filed or issued in the case giving rise to the criminal 4217 history record. 4218 2. An indictment, information, or other charging document 4219 was filed in the case giving rise to the criminal history 4220 record, but was dismissed or nolle prosequi by the state 4221 attorney or statewide prosecutor, or was dismissed by a court of 4222 competent jurisdiction. However, a person is not eligible for 4223 automatic sealing under this section if the dismissal was 4224 pursuant to s. 916.145 or s. 985.19. 4225 3. A not guilty verdict was rendered by a judge or jury. 4226 However, a person is not eligible for automatic sealing under 4227 this section if the defendant was found not guilty by reason of 4228 insanity. 4229 4. A judgment of acquittal was rendered by a judge. 4230 (b) There is no limitation on the number of times a person 4231 may obtain an automatic sealing for a criminal history record 4232 described in paragraph (a). 4233 (3) PROCESS FOR AND EFFECT OF AUTOMATIC SEALING.—
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4234 (a) Upon the disposition of a criminal case resulting in a 4235 criminal history record eligible for automatic sealing under 4236 paragraph (2)(a), the clerk of the court shall transmit a 4237 certified copy of the disposition of the criminal history record 4238 to the department, which shall seal the criminal history record 4239 upon receipt of the certified copy. 4240 (b) Automatic sealing of a criminal history record does 4241 not require sealing by the court or other criminal justice 4242 agencies, or that such record be surrendered to the court, and 4243 such record shall continue to be maintained by the department 4244 and other criminal justice agencies. 4245 (c) Except as provided in this section, automatic sealing 4246 of a criminal history record shall have the same effect, and the 4247 department may disclose such a record in the same manner, as a 4248 record sealed under s. 943.059. 4249 Section 53. Paragraph (b) of subsection (1) of section 4250 943.325, Florida Statutes, is amended to read: 4251 943.325 DNA database.— 4252 (1) LEGISLATIVE INTENT.— 4253 (b) The Legislature also finds that upon establishment of 4254 the Florida DNA database, a match between casework evidence DNA 4255 samples from a criminal investigation and DNA samples from a 4256 state or federal DNA database of certain offenders may be used 4257 to find probable cause for the issuance of a warrant for arrest 4258 or to obtain the DNA sample from an offender.
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4259 Section 54. Effective upon this act becoming a law, 4260 subsections (9) and (10) are added to section 943.6871, Florida 4261 Statutes, to read: 4262 943.6871 Criminal justice data transparency.—In order to 4263 facilitate the availability of comparable and uniform criminal 4264 justice data, the department shall: 4265 (9) Keep all information received by the department under 4266 s. 900.05, that is exempt and confidential when collected by the 4267 reporting agency, exempt and confidential for purposes of this 4268 section and s. 900.05. 4269 (10)(a) By October 1, 2019, assist the Criminal and 4270 Juvenile Justice Information Systems Council to develop 4271 specifications for a uniform arrest affidavit to be used by each 4272 state, county, and municipal law enforcement agency to 4273 facilitate complete, accurate, and timely collection and 4274 reporting of data from each criminal offense arrest. The uniform 4275 arrest affidavit shall include, at a minimum: 4276 1. Identification of the arrestee. 4277 2. Details of the arrest, including each charge. 4278 3. Details of each vehicle and item seized at the time of 4279 arrest. 4280 4. Juvenile arrestee information. 4281 5. Release information. 4282 4283 The uniform arrest affidavit specifications shall also include
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4284 guidelines for developing a uniform criminal charge and 4285 disposition statute crosswalk table to be used by each law 4286 enforcement agency, state attorney, and jail administrator; and 4287 guidelines for developing a uniform criminal disposition and 4288 sentencing statute crosswalk table to be used by each clerk of 4289 court. 4290 (b) By January 1, 2020, subject to appropriation, the 4291 department shall procure a uniform arrest affidavit, a uniform 4292 criminal charge and disposition statute crosswalk table, and a 4293 uniform criminal disposition and sentencing statute crosswalk 4294 table following the specifications developed under paragraph 4295 (a). The department shall provide training on use of the 4296 affidavit and crosswalk tables to each state, county, and 4297 municipal law enforcement agency, clerk of court, state 4298 attorney, and jail administrator, as appropriate. 4299 (c) By July 1, 2020, each state, county, and municipal law 4300 enforcement agency must use the uniform arrest affidavit; each 4301 state attorney and jail administrator must use the uniform 4302 criminal charge and statute crosswalk table; and each clerk of 4303 court must use the uniform criminal disposition and sentencing 4304 statute crosswalk table. 4305 Section 55. Section 944.40, Florida Statutes, is amended 4306 to read: 4307 944.40 Escapes; penalty.—Any prisoner confined in, or 4308 released on furlough from, any prison, jail, private
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4309 correctional facility, road camp, or other penal institution, 4310 whether operated by the state, a county, or a municipality, or 4311 operated under a contract with the state, a county, or a 4312 municipality, working upon the public roads, or being 4313 transported to or from a place of confinement who escapes or 4314 attempts to escape from such confinement commits a felony of the 4315 second degree, punishable as provided in s. 775.082, s. 775.083, 4316 or s. 775.084. The punishment of imprisonment imposed under this 4317 section shall run consecutive to any former sentence imposed 4318 upon any prisoner. 4319 Section 56. Subsection (2) of section 944.47, Florida 4320 Statutes, is amended to read: 4321 944.47 Introduction, removal, or possession of contraband 4322 certain articles unlawful; penalty.— 4323 (2)(a) A person who violates any provision of this section 4324 as it pertains to an article of contraband described in 4325 subparagraph (1)(a)1., subparagraph (1)(a)2., or subparagraph 4326 (1)(a)6. commits a felony of the third degree, punishable as 4327 provided in s. 775.082, s. 775.083, or s. 775.084. Otherwise In 4328 all other cases, a violation of a provision of this section is 4329 constitutes a felony of the second degree, punishable as 4330 provided in s. 775.082, s. 775.083, or s. 775.084. 4331 (b) A violation of this section by an employee, as defined 4332 in s. 944.115(2)(b), who uses or attempts to use the powers, 4333 rights, privileges, duties, or position of his or her employment
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4334 in the commission of the violation is ranked one level above the 4335 ranking specified in s. 921.0022 or s. 921.0023 for the offense 4336 committed. 4337 Section 57. Section 944.704, Florida Statutes, is amended 4338 to read: 4339 944.704 Staff who provide transition assistance; duties.— 4340 (1) The department shall provide a transition assistance 4341 specialist at each of the major institutions. 4342 (2) The department may increase the number of transition 4343 assistance specialists in proportion to the number of inmates 4344 served at each of the major institutions and may increase the 4345 number of employment specialists per judicial circuit based on 4346 the number of released inmates served under community 4347 supervision in that circuit, subject to appropriations. 4348 (3) The transition assistance specialists' whose duties 4349 include, but are not limited to: 4350 (a)(1) Coordinating delivery of transition assistance 4351 program services at the institution and at the community 4352 correctional centers authorized pursuant to s. 945.091(1)(b). 4353 (b)(2) Assisting in the development of each inmate's 4354 postrelease plan. 4355 (c)(3) Obtaining job placement information. Such 4356 information must include identifying any job assignment 4357 credentialing or industry certifications for which the inmate is 4358 eligible.
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4359 (d)(4) Providing a written medical discharge plan and 4360 referral to a county health department. 4361 (e)(5) For an inmate who is known to be HIV positive, 4362 providing a 30-day supply of all HIV/AIDS-related medication 4363 that the inmate is taking before prior to release, if required 4364 under protocols of the Department of Corrections and treatment 4365 guidelines of the United States Department of Health and Human 4366 Services. 4367 (f)(6) Facilitating placement in a private transition 4368 housing program, if requested by any eligible inmate. If an 4369 inmate who is nearing his or her date of release requests 4370 placement in a contracted substance abuse transition housing 4371 program, the transition assistance specialist shall inform the 4372 inmate of program availability and assess the inmate's need and 4373 suitability for transition housing assistance. If an inmate is 4374 approved for placement, the specialist shall assist the inmate 4375 and coordinate the release of the inmate with the selected 4376 program. If an inmate requests and is approved for placement in 4377 a contracted faith-based substance abuse transition housing 4378 program, the specialist must consult with the chaplain before 4379 prior to such placement. In selecting inmates who are nearing 4380 their date of release for placement in a faith-based program, 4381 the department shall ensure that an inmate's faith orientation, 4382 or lack thereof, will not be considered in determining admission 4383 to the program and that the program does not attempt to convert
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4384 an inmate toward a particular faith or religious preference. 4385 (g)(7) Providing a photo identification card to all 4386 inmates prior to their release. 4387 (4) A The transition assistance specialist may not be a 4388 correctional officer or correctional probation officer as 4389 defined in s. 943.10. 4390 Section 58. Section 944.705, Florida Statutes, is amended 4391 to read: 4392 944.705 Release orientation program.— 4393 (1) The department shall provide participation in a 4394 standardized release orientation program to every eligible 4395 inmate. 4396 (2) The release orientation program instruction must 4397 include, but is not limited to: 4398 (a) Employment skills. 4399 (b) Money management skills. 4400 (c) Personal development and planning. 4401 (d) Special needs. 4402 (e) Community reentry concerns. 4403 (f) Community reentry support. 4404 (g) Any other appropriate instruction to ensure the 4405 inmate's successful reentry into the community. 4406 (3)(a) The department shall establish a toll-free hotline 4407 for the benefit of released inmates. The hotline shall provide 4408 information to released inmates seeking to obtain post-release
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4409 referrals for community based reentry services. 4410 (b) Before an inmate's release, the department shall 4411 provide the inmate with a comprehensive community reentry 4412 resource directory, which must be organized by county and 4413 include the name, address, telephone number, and a description 4414 of the services offered by each reentry service provider. The 4415 directory must also include the name, address, and telephone 4416 number of existing portals of entry and the toll-free hotline 4417 number required by paragraph (a). 4418 (c) The department shall expand the use of a department- 4419 approved risk and needs assessment system to provide inmates and 4420 offenders with community-specific reentry service provider 4421 referrals. 4422 (4)(3) Any inmate who claims to be a victim of domestic 4423 violence as defined in s. 741.28 shall receive, as part of the 4424 release orientation program, referral to the nearest domestic 4425 violence center certified under chapter 39. 4426 (5)(4) The department shall conduct a needs assessment of 4427 every inmate to determine which, if any, basic support services 4428 the inmate needs after release. 4429 (6)(5) The department may contract with public or private 4430 entities, including faith-based service groups, for the 4431 provision of all or part of the services pursuant to this 4432 section. 4433 (7)(6)(a) The department shall notify every inmate, in no
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4434 less than 18-point type in the inmate's release documents, that 4435 the inmate may be sentenced pursuant to s. 775.082(9) if the 4436 inmate commits any felony offense described in s. 775.082(9) 4437 within 3 years after the inmate's release. This notice must be 4438 prefaced by the word "WARNING" in boldfaced type. 4439 (b) Nothing in this section precludes the sentencing of a 4440 person pursuant to s. 775.082(9), nor shall evidence that the 4441 department failed to provide this notice prohibit a person from 4442 being sentenced pursuant to s. 775.082(9). The state shall not 4443 be required to demonstrate that a person received any notice 4444 from the department in order for the court to impose a sentence 4445 pursuant to s. 775.082(9). 4446 (8) A nonprofit faith-based, business, professional, 4447 civic, or community organization may to apply for registration 4448 with the department to provide inmate reentry services. Reentry 4449 services include, but are not limited to, counseling; providing 4450 information on housing and job placement; money management 4451 assistance; and programs addressing substance abuse, mental 4452 health, or co-occurring conditions. 4453 (9) The department shall adopt policies and procedures for 4454 screening, approving, and registering an organization that 4455 applies under subsection (8). The department may deny approval 4456 and registration of an organization or a representative from an 4457 organization if it determines that the organization or 4458 representative does not meet the department's policies and
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4459 procedures. 4460 (10) The department may contract with a public or private 4461 educational institution's Veteran Advocacy Clinic or Veteran 4462 Legal Clinic to assist qualified veteran inmates in applying for 4463 veteran's benefits upon release. 4464 (11) The department may contract with public or private 4465 organizations to establish transitional employment programs that 4466 provide employment opportunities for released inmates. 4467 (12) The department shall adopt rules to implement this 4468 section. 4469 Section 59. Subsections (4) through (6) of section 4470 944.801, Florida Statutes, are renumbered as subsections (6) 4471 through (8), respectively, and new subsections (4) and (5) are 4472 added to that section, to read: 4473 944.801 Education for state prisoners.— 4474 (4) The department may expand the use of job assignment 4475 credentialing and industry certifications. 4476 (5) The Correctional Education Program may establish a 4477 Prison Entrepreneurship Program and adopt procedures for 4478 admitting student inmates. If the department elects to develop 4479 the program, it must include at least 180 days of in-prison 4480 education. Program curriculum must include a component on 4481 developing a business plan, procedures for graduation and 4482 certification of successful student inmates, and at least 90 4483 days of transitional and postrelease continuing education
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4484 services. Transitional and postrelease continuing education 4485 services may be offered to program graduates on a voluntary 4486 basis and must not be a requirement for completion of the 4487 program. The department shall enter into agreements with public 4488 or private colleges, universities, or other non-profit entities 4489 to implement the program. The program must be funded within 4490 existing resources. 4491 Section 60. Subsection (1) of section 948.001, Florida 4492 Statutes, is amended to read: 4493 948.001 Definitions.—As used in this chapter, the term: 4494 (1) "Administrative probation" means a form of no contact, 4495 nonreporting supervision. A court may order administrative 4496 probation, or the Department of Corrections may transfer an 4497 offender to administrative probation, in which an offender who 4498 presents a low risk of harm to the community may, upon 4499 satisfactory completion of half the term of probation, be 4500 transferred by the Department of Corrections to this type of 4501 reduced level of supervision, as provided in s. 948.013. 4502 Section 61. Subsection (1) of section 948.013, Florida 4503 Statutes, is amended to read: 4504 948.013 Administrative probation.— 4505 (1) The Department of Corrections may transfer an offender 4506 to administrative probation if he or she presents a low risk of 4507 harm to the community and has satisfactorily completed at least 4508 half of the probation term. The department of Corrections may
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4509 establish procedures for transferring an offender to 4510 administrative probation. The department may collect an initial 4511 processing fee of up to $50 for each probationer transferred to 4512 administrative probation. The offender is exempt from further 4513 payment for the cost of supervision as required in s. 948.09. 4514 Section 62. Subsections (4) through (6) are added to 4515 section 948.04, Florida Statutes, to read: 4516 948.04 Period of probation; duty of probationer; early 4517 termination.— 4518 (4) For offenders sentenced to probation on or after 4519 October 1, 2019, except as provided in subsection (5), the 4520 court, upon motion by the probationer or probation officer, 4521 shall either early terminate the probationer's supervision or 4522 convert the supervisory term to administrative probation if: 4523 (a) The probationer has completed at least half of the 4524 term of probation to which he or she was sentenced. 4525 (b) The probationer has successfully completed all other 4526 conditions of probation. 4527 (c) The court has not found the probationer in violation 4528 of probation pursuant to a filed affidavit of violation of 4529 probation at any point during the current supervisory term. 4530 (d) The parties did not specifically exclude the 4531 possibility of early termination or conversion to administrative 4532 probation as part of a negotiated sentence. 4533 (e) The probationer does not qualify as a violent felony
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4534 offender of special concern under s. 948.06(8)(b). 4535 (5) Upon making written findings that continued reporting 4536 probation is necessary to protect the community or the interests 4537 of justice, the court may decline to early terminate the 4538 probationary term or convert the term to administrative 4539 probation for a probationer who is otherwise eligible under 4540 subsection (4). 4541 (6) Subsections (4) and (5) do not apply to an offender on 4542 community control. If an offender on community control is 4543 subsequently placed on probation, he or she must complete half 4544 of the probationary term to which he or she was sentenced, 4545 without receiving credit for time served on community control, 4546 before being eligible for mandatory early termination or 4547 conversion to administrative probation under this section. 4548 Section 63. Section 948.05, Florida Statutes, is amended 4549 to read: 4550 948.05 Court to admonish or commend probationer or offender 4551 in community control; graduated incentives.— 4552 (1) A court may at any time cause a probationer or 4553 offender in community control to appear before it to be 4554 admonished or commended, and, when satisfied that its action 4555 will be for the best interests of justice and the welfare of 4556 society, it may discharge the probationer or offender in 4557 community control from further supervision. 4558 (2) The department shall implement a system of graduated
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4559 incentives to promote compliance with the terms of supervision 4560 and prioritize the highest levels of supervision for 4561 probationers or offenders presenting the greatest risk of 4562 recidivism. 4563 (a) As part of the graduated incentives system, the 4564 department may, without leave of court, offer the following 4565 incentives to a compliant probationer or offender: 4566 1. Up to 25 percent reduction of required community 4567 service hours; 4568 2. Waiver of supervision fees; 4569 3. Reduction in frequency of reporting; 4570 4. Permission to report by mail or phone; or 4571 5. Transfer of an eligible offender to administrative 4572 probation as permitted under s. 948.013. 4573 (b) The department may also incentivize positive behavior 4574 and compliance with recommendations to the court to modify the 4575 terms of supervision, including recommending: 4576 1. Permission to travel; 4577 2. Reduction of supervision type; 4578 3. Modification or cessation of curfew; 4579 4. Reduction or cessation of substance abuse testing; or 4580 5. Early termination of supervision. 4581 (c) A probationer or an offender who commits a subsequent 4582 violation of probation may forfeit any previously earned 4583 probation incentive, as determined appropriate by his or her
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4584 probation officer. 4585 Section 64. Paragraphs (c) through (g) of subsection (1) 4586 of section 948.06, Florida Statutes, are redesignated as 4587 paragraphs (d) through (h) respectively, present paragraph (h) 4588 of subsection (1) and subsection (2) are amended, and a new 4589 paragraph (c) of subsection (1) and subsection (9) are added to 4590 that section, to read: 4591 948.06 Violation of probation or community control; 4592 revocation; modification; continuance; failure to pay 4593 restitution or cost of supervision.— 4594 (1) 4595 (c) If a probationer or offender on community control 4596 commits a technical violation, the probation officer shall 4597 determine whether he or she is eligible for the alternative 4598 sanctioning program under subsection (9). If the probationer or 4599 offender on community control is eligible, the probation officer 4600 may proceed with the alternative sanctioning program in lieu of 4601 filing an affidavit of violation with the court. For purposes of 4602 this section, the term "technical violation" means an alleged 4603 violation of supervision that is not a new felony offense, 4604 misdemeanor offense, or criminal traffic offense. 4605 (h)1. The chief judge of each judicial circuit, in 4606 consultation with the state attorney, the public defender, and 4607 the department, may establish an alternative sanctioning program 4608 in which the department, after receiving court approval, may
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4609 enforce specified sanctions for certain technical violations of 4610 supervision. For purposes of this paragraph, the term "technical 4611 violation" means any alleged violation of supervision that is 4612 not a new felony offense, misdemeanor offense, or criminal 4613 traffic offense. 4614 2. To establish an alternative sanctioning program, the 4615 chief judge must issue an administrative order specifying: 4616 a. Eligibility criteria. 4617 b. The technical violations that are eligible for the 4618 program. 4619 c. The sanctions that may be recommended by a probation 4620 officer for each technical violation. 4621 d. The process for reporting technical violations through 4622 the alternative sanctioning program, including approved forms. 4623 3. If an offender is alleged to have committed a technical 4624 violation of supervision that is eligible for the program, the 4625 offender may: 4626 a. Waive participation in the alternative sanctioning 4627 program, in which case the probation officer may submit a 4628 violation report, affidavit, and warrant to the court in 4629 accordance with this section; or 4630 b. Elect to participate in the alternative sanctioning 4631 program after receiving written notice of an alleged technical 4632 violation and a disclosure of the evidence against the offender, 4633 admit to the technical violation, agree to comply with the
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4634 probation officer's recommended sanction if subsequently ordered 4635 by the court, and agree to waive the right to: 4636 (I) Be represented by legal counsel. 4637 (II) Require the state to prove his or her guilt before a 4638 neutral and detached hearing body. 4639 (III) Subpoena witnesses and present to a judge evidence 4640 in his or her defense. 4641 (IV) Confront and cross-examine adverse witnesses. 4642 (V) Receive a written statement from a factfinder as to 4643 the evidence relied on and the reasons for the sanction imposed. 4644 4. If the offender admits to committing the technical 4645 violation and agrees with the probation officer's recommended 4646 sanction, the probation officer must, before imposing the 4647 sanction, submit the recommended sanction to the court as well 4648 as documentation reflecting the offender's admission to the 4649 technical violation and agreement with the recommended sanction. 4650 5. The court may impose the recommended sanction or may 4651 direct the department to submit a violation report, affidavit, 4652 and warrant to the court in accordance with this section. 4653 6. An offender's participation in an alternative 4654 sanctioning program is voluntary. The offender may elect to 4655 waive or discontinue participation in an alternative sanctioning 4656 program at any time before the issuance of a court order 4657 imposing the recommended sanction. 4658 7. If an offender waives or discontinues participation in
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4659 an alternative sanctioning program, the probation officer may 4660 submit a violation report, affidavit, and warrant to the court 4661 in accordance with this section. The offender's prior admission 4662 to the technical violation may not be used as evidence in 4663 subsequent proceedings. 4664 (2)(a) The court, upon the probationer or offender being 4665 brought before it, shall advise him or her of such charge of 4666 violation and, if such charge is admitted to be true, may 4667 forthwith revoke, modify, or continue the probation or community 4668 control or place the probationer into a community control 4669 program. 4670 (b) If probation or community control is revoked, the 4671 court shall adjudge the probationer or offender guilty of the 4672 offense charged and proven or admitted, unless he or she has 4673 previously been adjudged guilty, and impose any sentence which 4674 it might have originally imposed before placing the probationer 4675 on probation or the offender into community control. 4676 (c) If such violation of probation or community control is 4677 not admitted by the probationer or offender, the court may 4678 commit him or her or release him or her with or without bail to 4679 await further hearing, or it may dismiss the charge of probation 4680 or community control violation. 4681 (d) If such charge is not at that time admitted by the 4682 probationer or offender and if it is not dismissed, the court, 4683 as soon as may be practicable, shall give the probationer or
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4684 offender an opportunity to be fully heard on his or her behalf 4685 in person or by counsel. 4686 (e) After such hearing, the court may revoke, modify, or 4687 continue the probation or community control or place the 4688 probationer into community control. If such probation or 4689 community control is revoked, the court shall adjudge the 4690 probationer or offender guilty of the offense charged and proven 4691 or admitted, unless he or she has previously been adjudged 4692 guilty, and impose any sentence which it might have originally 4693 imposed before placing the probationer or offender on probation 4694 or into community control. 4695 (f)1. Except as provided in subparagraph 3. or upon waiver 4696 by the offender, the court shall modify or continue a 4697 probationary term upon finding a probationer in violation under 4698 the following circumstances: 4699 a. The term of supervision is probation. 4700 b. The probationer does not qualify as a violent felony 4701 offender of special concern, as defined in paragraph (8)(b). 4702 c. The violation is a low-risk technical violation, as 4703 defined in paragraph (9)(b). 4704 d. The court has not previously found the probationer in 4705 violation of his or her probation pursuant to a filed violation 4706 of probation affidavit during the current term of supervision. A 4707 probationer who has successfully completed sanctions through the 4708 alternative sanctioning program is eligible for mandatory
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4709 modification or continuation of his or her probation. 4710 2. Upon modifying probation under subparagraph 1., the 4711 court may include in the sentence a maximum of 90 days in county 4712 jail as a special condition of probation. 4713 3. Notwithstanding s. 921.0024, if a probationer has less 4714 than 90 days of supervision remaining on his or her term of 4715 probation and meets the criteria for mandatory modification or 4716 continuation in subparagraph 1., the court may revoke probation 4717 and sentence the probationer to a maximum of 90 days in county 4718 jail. 4719 4. For purposes of imposing a jail sentence under this 4720 paragraph only, the court may grant credit only for time served 4721 in the county jail since the probationer's most recent arrest 4722 for the violation. However, the court may not order the 4723 probationer to a total term of incarceration greater than the 4724 maximum provided by s. 775.082. 4725 (g) Notwithstanding s. 775.082, when a period of probation 4726 or community control has been tolled, upon revocation or 4727 modification of the probation or community control, the court 4728 may impose a sanction with a term that when combined with the 4729 amount of supervision served and tolled, exceeds the term 4730 permissible pursuant to s. 775.082 for a term up to the amount 4731 of the tolled period of supervision. 4732 (h)(g) If the court dismisses an affidavit alleging a 4733 violation of probation or community control, the offender's
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4734 probation or community control shall continue as previously 4735 imposed, and the offender shall receive credit for all tolled 4736 time against his or her term of probation or community control. 4737 (i)(h)1. For each case in which the offender admits to 4738 committing a violation or is found to have committed a 4739 violation, the department shall provide the court with a 4740 recommendation as to disposition by the court. The department 4741 shall provide the reasons for its recommendation and include an 4742 evaluation of: 4743 a. The appropriateness or inappropriateness of community 4744 facilities, programs, or services for treating or supervising 4745 the offender; 4746 b. The ability or inability of the department to provide 4747 an adequate level of supervision of the offender in the 4748 community and a statement of what constitutes an adequate level 4749 of supervision; and 4750 c. The existence of treatment modalities that the offender 4751 could use but that do not currently exist in the community. 4752 2. The report must also include a summary of the 4753 offender's prior supervision history, including the offender's 4754 prior participation in treatment, educational, and vocational 4755 programs, and any other actions by or circumstances concerning 4756 the offender which are relevant. 4757 3. The court may specify whether the recommendation or 4758 report must be oral or written and may waive the requirement for
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4759 a report in an individual case or a class of cases. This 4760 paragraph does not prohibit the department from making any other 4761 report or recommendation that is provided for by law or 4762 requested by the court. 4763 (j)(i)1. Notwithstanding s. 921.0024 and effective for 4764 offenses committed on or after July 1, 2009, the court may order 4765 the defendant to successfully complete a postadjudicatory 4766 treatment-based drug court program if: 4767 a. The court finds or the offender admits that the 4768 offender has violated his or her community control or probation; 4769 b. The offender's Criminal Punishment Code scoresheet 4770 total sentence points under s. 921.0024 are 60 points or fewer 4771 after including points for the violation; 4772 c. The underlying offense is a nonviolent felony. As used 4773 in this subsection, the term "nonviolent felony" means a third 4774 degree felony violation under chapter 810 or any other felony 4775 offense that is not a forcible felony as defined in s. 776.08; 4776 d. The court determines that the offender is amenable to 4777 the services of a postadjudicatory treatment-based drug court 4778 program; 4779 e. The court has explained the purpose of the program to 4780 the offender and the offender has agreed to participate; and 4781 f. The offender is otherwise qualified to participate in 4782 the program under the provisions of s. 397.334(3). 4783 2. After the court orders the modification of community
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4784 control or probation, the original sentencing court shall 4785 relinquish jurisdiction of the offender's case to the 4786 postadjudicatory treatment-based drug court program until the 4787 offender is no longer active in the program, the case is 4788 returned to the sentencing court due to the offender's 4789 termination from the program for failure to comply with the 4790 terms thereof, or the offender's sentence is completed. 4791 (k)(j)1. Notwithstanding s. 921.0024 and effective for 4792 offenses committed on or after July 1, 2016, the court may order 4793 the offender to successfully complete a postadjudicatory mental 4794 health court program under s. 394.47892 or a military veterans 4795 and servicemembers court program under s. 394.47891 if: 4796 a. The court finds or the offender admits that the 4797 offender has violated his or her community control or probation; 4798 b. The underlying offense is a nonviolent felony. As used 4799 in this subsection, the term "nonviolent felony" means a third 4800 degree felony violation under chapter 810 or any other felony 4801 offense that is not a forcible felony as defined in s. 776.08. 4802 Offenders charged with resisting an officer with violence under 4803 s. 843.01, battery on a law enforcement officer under s. 784.07, 4804 or aggravated assault may participate in the mental health court 4805 program if the court so orders after the victim is given his or 4806 her right to provide testimony or written statement to the court 4807 as provided in s. 921.143; 4808 c. The court determines that the offender is amenable to
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4809 the services of a postadjudicatory mental health court program, 4810 including taking prescribed medications, or a military veterans 4811 and servicemembers court program; 4812 d. The court explains the purpose of the program to the 4813 offender and the offender agrees to participate; and 4814 e. The offender is otherwise qualified to participate in a 4815 postadjudicatory mental health court program under s. 4816 394.47892(4) or a military veterans and servicemembers court 4817 program under s. 394.47891. 4818 2. After the court orders the modification of community 4819 control or probation, the original sentencing court shall 4820 relinquish jurisdiction of the offender's case to the 4821 postadjudicatory mental health court program until the offender 4822 is no longer active in the program, the case is returned to the 4823 sentencing court due to the offender's termination from the 4824 program for failure to comply with the terms thereof, or the 4825 offender's sentence is completed. 4826 (9)(a) For a first or second low-risk violation, as 4827 defined in paragraph (b), within the current term of 4828 supervision, a probation officer may offer an eligible 4829 probationer one or more of the following as an alternative 4830 sanction: 4831 1. Up to 5 days in the county jail. 4832 2. Up to 50 additional community service hours. 4833 3. Counseling or treatment.
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4834 4. Support group attendance. 4835 5. Drug testing. 4836 6. Loss of travel or other privileges. 4837 7. Curfew for up to 30 days. 4838 8. House arrest for up to 30 days. 4839 9. Any other sanction specified by administrative order of 4840 the chief judge of the circuit. However, in no circumstance 4841 shall participation in an alternative sanctioning program 4842 convert a withheld adjudication to an adjudication of guilt. 4843 (b) When committed by a probationer, a low-risk violation 4844 includes: 4845 1. Positive drug or alcohol test result. 4846 2. Failure to report to the probation office. 4847 3. Failure to report a change in address or other required 4848 information. 4849 4. Failure to attend a required class, treatment or 4850 counseling session, or meeting. 4851 5. Failure to submit to a drug or alcohol test. 4852 6. Curfew violation. 4853 7. Failure to meet a monthly quota on any required 4854 probation condition, including, but not limited to, making 4855 restitution payments, payment of court costs, and completing 4856 community service hours. 4857 8. Leaving the county without permission. 4858 9. Failure to report a change in employment.
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4859 10. Associating with a person engaged in criminal 4860 activity. 4861 11. Any other violation specified by administrative order 4862 of the chief judge of the circuit. 4863 (c) For a first time moderate-risk violation, as defined 4864 in paragraph (d), within the current term of supervision, a 4865 probation officer, with supervisor approval, may offer an 4866 eligible probationer or offender on community control one or 4867 more of the following as an alternative sanction: 4868 1. Up to 21 days in the county jail. 4869 2. Curfew for up to 90 days. 4870 3. House arrest for up to 90 days. 4871 4. Electronic monitoring for up to 90 days. 4872 5. Residential treatment for up to 90 days. 4873 6. Any other sanction available for a low-risk violation. 4874 7. Any other sanction specified by administrative order of 4875 the chief judge of the circuit. 4876 (d) A moderate-risk violation includes: 4877 1. A violation listed under paragraph (b) when committed 4878 by an offender on community control; 4879 2. Failure to remain at an approved residence by an 4880 offender on community control; 4881 3. A third violation listed under paragraph (b) by a 4882 probationer within the current term of supervision; or 4883 4. Any other violation specified by administrative order
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4884 of the chief judge of the circuit. However, in no circumstance 4885 shall participation in an alternative sanctioning program 4886 convert a withheld adjudication to an adjudication of guilt. 4887 (e) A probationer or offender on community control is not 4888 eligible for an alternative sanction if: 4889 1. He or she is a violent felony offender of special 4890 concern, as defined in paragraph (8)(b). 4891 2. The violation is a felony, misdemeanor, or criminal 4892 traffic offense. 4893 3. The violation is absconding. 4894 4. The violation is for a failure to comply with a no- 4895 contact or stay-away order. 4896 5. The violation is not identified as low-risk or 4897 moderate-risk under this paragraph or by administrative order. 4898 6. He or she has a prior moderate-risk level violation 4899 during the current term of supervision. 4900 7. He or she has three or more prior low-risk level 4901 violations during the current term of supervision. 4902 8. The term of supervision is scheduled to terminate in 4903 less than 90 days. 4904 9. The terms of the sentence prohibit alternative 4905 sanctioning. 4906 (f) If a probationer or offender on community control is 4907 eligible for the alternative sanctioning program, he or she may: 4908 1. Waive participation in the program, in which case the
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4909 probation officer may submit a violation report, affidavit, and 4910 warrant to the court; or 4911 2. Elect to participate in the program after receiving 4912 written notice of an alleged technical violation and disclosure 4913 of the evidence against him or her, admit to the technical 4914 violation, agree to comply with the probation officer's 4915 recommended sanction if subsequently ordered by the court, and 4916 agree to waive the right to: 4917 a. Be represented by legal counsel. 4918 b. Require the state to prove his or her guilt before a 4919 neutral and detached hearing body. 4920 c. Subpoena witnesses and present to a judge evidence in 4921 his or her defense. 4922 d. Confront and cross-examine adverse witnesses. 4923 e. Receive a written statement from a judge as to the 4924 evidence relied on and the reasons for the sanction imposed. 4925 (g) If the probationer or offender on community control 4926 admits to committing the technical violation and agrees with the 4927 probation officer's recommended sanction, the probation officer 4928 shall, before imposing the sanction, submit the recommended 4929 sanction to the court with documentation reflecting the 4930 probationer's admission to the technical violation and agreement 4931 with the recommended sanction. 4932 (h) The court may impose the recommended sanction or 4933 direct the department to submit a violation report, affidavit,
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4934 and warrant to the court. 4935 (i) An offender's participation in the alternative 4936 sanctioning program is voluntary. The probationer or offender on 4937 community control may waive or discontinue participation in the 4938 program at any time before the court imposes a recommended 4939 sanction. 4940 (j) If a probationer or offender on community control 4941 waives or discontinues participation in the alternative 4942 sanctioning program or fails to successfully complete all 4943 alternative sanctions within 90 days of imposition or within the 4944 timeframe specified in the agreed upon sanction, the probation 4945 officer may submit a violation report, affidavit, and warrant to 4946 the court. A prior admission by the probationer or offender on 4947 community control to a technical violation may not be used as 4948 evidence in subsequent proceedings. 4949 (k) Each judicial circuit shall establish an alternative 4950 sanctioning program as provided in this subsection. The chief 4951 judge of each judicial circuit may, by administrative order, 4952 define additional sanctions or eligibility criteria and specify 4953 the process for reporting technical violations through the 4954 alternative sanctioning program. 4955 Section 65. Subsection (6) and paragraph (a) and 4956 subsection (7) of section 948.08, Florida Statutes, are amended 4957 to read: 4958 948.08 Pretrial intervention program.—
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4959 (6)(a) For purposes of this subsection, the term 4960 "nonviolent felony" means a third degree felony violation of 4961 chapter 810 or any other felony offense that is not a forcible 4962 felony as defined in s. 776.08. 4963 (b) Notwithstanding any provision of this section, a 4964 person who is charged with a nonviolent felony and is identified 4965 as having a substance abuse problem or is charged with a felony 4966 of the second or third degree for purchase or possession of a 4967 controlled substance under chapter 893, prostitution, tampering 4968 with evidence, solicitation for purchase of a controlled 4969 substance, or obtaining a prescription by fraud; who has not 4970 been charged with a crime involving violence, including, but not 4971 limited to, murder, sexual battery, robbery, carjacking, home- 4972 invasion robbery, or any other crime involving violence; and who 4973 has not previously been convicted of a felony is eligible for 4974 voluntary admission into a pretrial substance abuse education 4975 and treatment intervention program, including a treatment-based 4976 drug court program established pursuant to s. 397.334, approved 4977 by the chief judge of the circuit, for a period of not less than 4978 1 year in duration, if he or she: 4979 1. Is identified as having a substance abuse problem and 4980 is amenable to treatment. 4981 2. Is charged with a nonviolent felony. 4982 3. Has never been charged with a crime involving violence 4983 including, but not limited to, murder, sexual battery, robbery,
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4984 carjacking, home-invasion robbery, or any other crime involving 4985 violence. 4986 4. Has two or fewer felony convictions, provided that the 4987 prior convictions are for nonviolent felonies only. 4988 (c) Upon motion of either party or the court's own motion, 4989 and with the agreement of the defendant, the court shall admit 4990 an eligible person into a pretrial substance abuse education and 4991 treatment intervention program, except: 4992 1. If a defendant was previously offered admission to a 4993 pretrial substance abuse education and treatment intervention 4994 program at any time prior to trial and the defendant rejected 4995 that offer on the record, then the court or the state attorney 4996 may deny the defendant's admission to such a program. 4997 2. If the state attorney believes that the facts and 4998 circumstances of the case suggest the defendant's involvement in 4999 the dealing and selling of controlled substances, the court 5000 shall hold a preadmission hearing. If the state attorney 5001 establishes, by a preponderance of the evidence at such hearing, 5002 that the defendant was involved in the dealing or selling of 5003 controlled substances, the court shall deny the defendant's 5004 admission into a pretrial intervention program. 5005 3. If the defendant has two or fewer prior felony 5006 convictions as provided in subparagraph (b)4., the court may 5007 deny admission to such a program in its discretion. 5008 (d)(b) While enrolled in a pretrial intervention program
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5009 authorized by this subsection, the participant is subject to a 5010 coordinated strategy developed by a drug court team under s. 5011 397.334(4). The coordinated strategy may include a protocol of 5012 sanctions that may be imposed upon the participant for 5013 noncompliance with program rules. The protocol of sanctions may 5014 include, but is not limited to, placement in a substance abuse 5015 treatment program offered by a licensed service provider as 5016 defined in s. 397.311 or in a jail-based treatment program or 5017 serving a period of incarceration within the time limits 5018 established for contempt of court. The coordinated strategy must 5019 be provided in writing to the participant before the participant 5020 agrees to enter into a pretrial treatment-based drug court 5021 program or other pretrial intervention program. Any person whose 5022 charges are dismissed after successful completion of the 5023 treatment-based drug court program, if otherwise eligible, may 5024 have his or her arrest record and plea of nolo contendere to the 5025 dismissed charges expunged under s. 943.0585. 5026 (e)(c) At the end of the pretrial intervention period, the 5027 court shall consider the recommendation of the administrator 5028 pursuant to subsection (5) and the recommendation of the state 5029 attorney as to disposition of the pending charges. The court 5030 shall determine, by written finding, whether the defendant has 5031 successfully completed the pretrial intervention program. 5032 Notwithstanding the coordinated strategy developed by a drug 5033 court team pursuant to s. 397.334(4), if the court finds that
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5034 the defendant has not successfully completed the pretrial 5035 intervention program, the court may order the person to continue 5036 in education and treatment, which may include substance abuse 5037 treatment programs offered by licensed service providers as 5038 defined in s. 397.311 or jail-based treatment programs, or order 5039 that the charges revert to normal channels for prosecution. The 5040 court shall dismiss the charges upon a finding that the 5041 defendant has successfully completed the pretrial intervention 5042 program. 5043 (f)(d) Any entity, whether public or private, providing a 5044 pretrial substance abuse education and treatment intervention 5045 program under this subsection must contract with the county or 5046 appropriate governmental entity, and the terms of the contract 5047 must include, but need not be limited to, the requirements 5048 established for private entities under s. 948.15(3). 5049 (7)(a) Notwithstanding any provision of this section, a 5050 person who is charged with a felony, other than a felony listed 5051 in s. 948.06(8)(c), and identified as a veteran, as defined in 5052 s. 1.01, including a veteran who is discharged or released under 5053 a general discharge, or servicemember, as defined in s. 250.01; 5054 an individual who is a current or former United States 5055 Department of Defense contractor, provided any separation was 5056 not due to the former contractor's bad conduct; or an individual 5057 who is a current or former military member of a foreign allied 5058 country, provided any discharge was the equivalent of an
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5059 honorable or general discharge, who suffers from a military 5060 service-related mental illness, traumatic brain injury, 5061 substance abuse disorder, or psychological problem, is eligible 5062 for voluntary admission into a pretrial veterans' treatment 5063 intervention program approved by the chief judge of the circuit, 5064 upon motion of either party or the court's own motion, except: 5065 1. If a defendant was previously offered admission to a 5066 pretrial veterans' treatment intervention program at any time 5067 before trial and the defendant rejected that offer on the 5068 record, the court may deny the defendant's admission to such a 5069 program. 5070 2. If a defendant previously entered a court-ordered 5071 veterans' treatment program, the court may deny the defendant's 5072 admission into the pretrial veterans' treatment program. 5073 Section 66. Section 948.081, Florida Statutes, is created 5074 to read: 5075 948.081 Community court programs.— 5076 (1) Each judicial circuit may establish a community court 5077 program for defendants charged with certain misdemeanor 5078 offenses. Each community court shall, at a minimum: 5079 (a) Adopt a nonadversarial approach. 5080 (b) Establish an advisory committee to recommend solutions 5081 and sanctions in each case. 5082 (c) Provide for judicial leadership and interaction. 5083 (d) In each particular case, consider the needs of the
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5084 victim, consider individualized treatment services for the 5085 defendant, and monitor the defendant's compliance. 5086 (2) The chief judge of the judicial circuit shall, by 5087 administrative order, specify each misdemeanor offense eligible 5088 for the community court program. In making such determination, 5089 the chief judge shall consider the particular needs and concerns 5090 of the communities within the judicial circuit. 5091 (3) A defendant's entry into any community court program 5092 shall be voluntary. 5093 (4) The chief judge shall appoint a community court 5094 resource coordinator, who shall: 5095 (a) Coordinate the responsibilities of the participating 5096 agencies and service providers. 5097 (b) Provide case management services. 5098 (c) Monitor compliance by defendants with court 5099 requirements. 5100 (d) Manage the collection of data for program evaluation 5101 and accountability. 5102 (5) The chief judge of the judicial circuit shall appoint 5103 members to an advisory committee for each community court. The 5104 members of the advisory committee must include, at a minimum: 5105 (a) The chief judge or a community court judge designated 5106 by the chief judge, who shall serve as chair. 5107 (b) The state attorney or his or her designee. 5108 (c) The public defender or his or her designee.
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5109 (d) The community court resource coordinator. 5110 5111 The committee may also include community stakeholders, treatment 5112 representatives, and other persons the chair deems appropriate. 5113 (6) The advisory committee shall review each defendant's 5114 case. Each committee member may make recommendations to the 5115 judge, including appropriate sanctions and treatment solutions 5116 for the defendant. The judge shall consider such recommendations 5117 and make the final decision concerning sanctions and treatment 5118 with respect to each defendant. 5119 (7) Each judicial circuit shall report client-level and 5120 programmatic data to the Office of State Courts Administrator 5121 annually for program evaluation. Client-level data include 5122 primary offenses resulting in the community court referral or 5123 sentence, treatment compliance, completion status, reasons for 5124 failing to complete the program, offenses committed during 5125 treatment and sanctions imposed, frequency of court appearances, 5126 and units of service. Programmatic data include referral and 5127 screening procedures, eligibility criteria, type and duration of 5128 treatment offered, and residential treatment resources. 5129 (8) The Department of Corrections, Department of Juvenile 5130 Justice, Department of Health, Department of Law Enforcement, 5131 Department of Education, law enforcement agencies, and other 5132 government entities involved in the criminal justice system 5133 shall support such community court programs.
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5134 (9) Community court program funding must be secured from 5135 sources other than the state for costs not assumed by the state 5136 under s. 29.004. However, this subsection does not preclude the 5137 use of funds provided for treatment and other services through 5138 state executive branch agencies. 5139 Section 67. Paragraph (a) of subsection (2) of section 5140 948.16, Florida Statutes, is amended to read: 5141 948.16 Misdemeanor pretrial substance abuse education and 5142 treatment intervention program; misdemeanor pretrial veterans' 5143 treatment intervention program; misdemeanor pretrial mental 5144 health court program.— 5145 (2)(a) A veteran, as defined in s. 1.01, including a 5146 veteran who is discharged or released under a general discharge, 5147 or servicemember, as defined in s. 250.01; an individual who is 5148 a current or former United States Department of Defense 5149 contractor, provided any separation was not due to the former 5150 contractor's bad conduct; or an individual who is a current or 5151 former military member of a foreign allied country, provided any 5152 discharge was the equivalent of an honorable or general 5153 discharge, who suffers from a military service-related mental 5154 illness, traumatic brain injury, substance abuse disorder, or 5155 psychological problem, and who is charged with a misdemeanor is 5156 eligible for voluntary admission into a misdemeanor pretrial 5157 veterans' treatment intervention program approved by the chief 5158 judge of the circuit, for a period based on the program's
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5159 requirements and the treatment plan for the offender, upon 5160 motion of either party or the court's own motion. However, the 5161 court may deny the defendant admission into a misdemeanor 5162 pretrial veterans' treatment intervention program if the 5163 defendant has previously entered a court-ordered veterans' 5164 treatment program. 5165 Section 68. Subsection (2) of section 948.21, Florida 5166 Statutes, is amended to read: 5167 948.21 Condition of probation or community control; 5168 military servicemembers, and veterans, and others.— 5169 (2) Effective for a probationer or community controllee 5170 whose crime is committed on or after July 1, 2016, and who is a 5171 veteran, as defined in s. 1.01, including a veteran who is 5172 discharged or released under a general discharge, or 5173 servicemember, as defined in s. 250.01; an individual who is a 5174 current or former United States Department of Defense 5175 contractor, provided any separation was not due to the former 5176 contractor's bad conduct; or an individual who is a current or 5177 former military member of a foreign allied country, provided any 5178 discharge was the equivalent of an honorable or general 5179 discharge, who suffers from a military service-related mental 5180 illness, traumatic brain injury, substance abuse disorder, or 5181 psychological problem, the court may, in addition to any other 5182 conditions imposed, impose a condition requiring the probationer 5183 or community controllee to participate in a treatment program
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June 28, 2019 Criminal Procedure Rules Committee 543 F L O R I D A H O U S E O F R E P RESENTATIVE S
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5184 capable of treating the probationer or community controllee's 5185 mental illness, traumatic brain injury, substance abuse 5186 disorder, or psychological problem. 5187 Section 69. Section 951.22, Florida Statutes, is amended 5188 to read: 5189 951.22 County detention facilities; contraband articles.— 5190 (1) It is unlawful, except through regular channels as 5191 duly authorized by the sheriff or officer in charge, to 5192 introduce into or possess upon the grounds of any county 5193 detention facility as defined in s. 951.23 or to give to or 5194 receive from any inmate of any such facility wherever said 5195 inmate is located at the time or to take or to attempt to take 5196 or send therefrom any of the following articles, which are 5197 hereby declared to be contraband: 5198 (a) for the purposes of this act, to wit: Any written or 5199 recorded communication. This paragraph does not apply to any 5200 document or correspondence exchanged between a lawyer, 5201 paralegal, or other legal staff, and an inmate at a detention 5202 facility if such document or correspondence is otherwise 5203 lawfully possessed and disseminated and relates to the legal 5204 representation of the inmate.; 5205 (b) Any currency or coin.; 5206 (c) Any article of food or clothing.; 5207 (d) Any tobacco products as defined in s. 210.25(12).; 5208 (e) Any cigarette as defined in s. 210.01(1).;
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5209 (f) Any cigar.; 5210 (g) Any intoxicating beverage or beverage that which causes 5211 or may cause an intoxicating effect.; 5212 (h) Any narcotic, hypnotic, or excitative drug or drug of 5213 any kind or nature, including nasal inhalators, sleeping pills, 5214 barbiturates, and controlled substances as defined in s. 5215 893.02(4).; 5216 (i) Any firearm or any instrumentality customarily used or 5217 which is intended to be used as a dangerous weapon.; and 5218 (j) Any instrumentality of any nature which that may be or 5219 is intended to be used as an aid in effecting or attempting to 5220 effect an escape from a county facility. 5221 (k) Any cellular telephone or other portable communication 5222 device as described in s. 944.47(1)(a)6. The term does not 5223 include any device that has communication capabilities which has 5224 been approved or issued by the sheriff or officer in charge for 5225 investigative or institutional security purposes or for 5226 conducting other official business. 5227 (2) A person who Whoever violates paragraph (1)(a), 5228 paragraph (1)(b), paragraph (1)(c), paragraph (1)(d), paragraph 5229 (1)(e), paragraph (1)(f), or paragraph (1)(g) commits a 5230 misdemeanor of the first degree, punishable as provided in s. 5231 775.082 or s. 775.083. A person who violates paragraph (1)(h), 5232 paragraph (1)(i), paragraph (1)(j), or paragraph (1)(k) commits 5233 subsection (1) shall be guilty of a felony of the third degree,
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5234 punishable as provided in s. 775.082, s. 775.083, or s. 775.084. 5235 Section 70. Subsection (1) of section 958.04, Florida 5236 Statutes, is amended to read: 5237 958.04 Judicial disposition of youthful offenders.— 5238 (1) The court may sentence as a youthful offender any 5239 person: 5240 (a) Who is at least 18 years of age or who has been 5241 transferred for prosecution to the criminal division of the 5242 circuit court pursuant to chapter 985; 5243 (b) Who is found guilty of or who has tendered, and the 5244 court has accepted, a plea of nolo contendere or guilty to a 5245 crime that is, under the laws of this state, a felony if such 5246 crime was committed before the defendant turned 21 years of age 5247 the offender is younger than 21 years of age at the time 5248 sentence is imposed; and 5249 (c) Who has not previously been classified as a youthful 5250 offender under the provisions of this act; however, a person who 5251 has been found guilty of a capital or life felony may not be 5252 sentenced as a youthful offender under this act. 5253 Section 71. Section 960.07, Florida Statutes, are amended 5254 to read: 5255 960.07 Filing of claims for compensation.— 5256 (1) A claim for compensation may be filed by a person 5257 eligible for compensation as provided in s. 960.065 or, if such 5258 person is a minor, by his or her parent or guardian or, if the
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5259 person entitled to make a claim is mentally incompetent, by the 5260 person's guardian or such other individual authorized to 5261 administer his or her estate. 5262 (2) Except as provided in subsections subsection (3) and 5263 (4), a claim must be filed in accordance with this subsection. 5264 not later than 1 year after: 5265 (a)1. A claim arising from a crime occurring before 5266 October 1, 2019, must be filed within 1 year of: 5267 a. The occurrence of the crime upon which the claim is 5268 based. 5269 b.(b) The death of the victim or intervenor. 5270 c.(c) The death of the victim or intervenor is determined 5271 to be the result of a crime, and the crime occurred after June 5272 30, 1994. 5273 5274 2. However, For good cause the department may extend the 5275 time for filing a claim under subparagraph 1. for a period not 5276 exceeding 2 years after such occurrence. 5277 (b)1. A claim arising from a crime occurring on or after 5278 October 1, 2019, must be filed within 3 years after the later 5279 of: 5280 a. The occurrence of the crime upon which the claim is 5281 based. 5282 b. The death of the victim or intervenor. 5283 c. The death of the victim or intervenor is determined to
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5284 be the result of the crime. 5285 2. For good cause the department may extend the time for 5286 filing a claim under subparagraph 1. for a period not to exceed 5287 5 years after such occurrence. 5288 (3) Notwithstanding the provisions of subsection (2) and 5289 regardless of when the crime occurred, if the victim or 5290 intervenor was under the age of 18 at the time the crime upon 5291 which the claim is based occurred, a claim may be filed in 5292 accordance with this subsection. 5293 (a) The victim's or intervenor's parent or guardian may 5294 file a claim on behalf of the victim or intervenor while the 5295 victim or intervenor is less than 18 years of age; or 5296 (b) For a claim arising from a crime that occurred before 5297 October 1, 2019, when a victim or intervenor who was under the 5298 age of 18 at the time the crime occurred reaches the age of 18, 5299 the victim or intervenor has 1 year within which to file a 5300 claim; or 5301 (c) For a claim arising from a crime occurring on or after 5302 October 1, 2019, when a victim or intervenor who was under the 5303 age of 18 at the time the crime occurred reaches the age of 18, 5304 the victim or intervenor has 3 years to file a claim. 5305 5306 For good cause, the department may extend the time period 5307 allowed for filing a claim under paragraph (b) for an additional 5308 period not to exceed 1 year or under paragraph (c) for an
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5309 additional period not to exceed 2 years. 5310 (4) The provisions of subsection (2) notwithstanding, and 5311 regardless of when the crime occurred, a victim of a sexually 5312 violent offense as defined in s. 394.912, may file a claim for 5313 compensation for counseling or other mental health services 5314 within: 5315 (a) One 1 year after the filing of a petition under s. 5316 394.914, to involuntarily civilly commit the individual who 5317 perpetrated the sexually violent offense, if the claim arises 5318 from a crime committed before October 1, 2019; or 5319 (b) Three years after the filing of petition under s. 5320 394.914, to involuntarily civilly commit the individual who 5321 perpetrated the sexually violent offense, if the claim arises 5322 from a crime committed on or after October 1, 2019. 5323 Section 72. Paragraph (b) of subsection (1) of section 5324 960.13, Florida Statutes, is amended to read: 5325 960.13 Awards.— 5326 (1) 5327 (b) In no case may an award be made when the record shows 5328 that such report was made more than: 5329 1. Seventy-two 72 hours after the occurrence of such 5330 crime, if the crime occurred before October 1, 2019; or 5331 2. Five days after the occurrence of such crime, if the 5332 crime occurred on or after October 1, 2019, 5333
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5334 unless the department, for good cause shown, finds the delay to 5335 have been justified. The department, upon finding that any 5336 claimant or award recipient has not duly cooperated with the 5337 state attorney, all law enforcement agencies, and the 5338 department, may deny, reduce, or withdraw any award, as the case 5339 may be. 5340 Section 73. Paragraph (b) of subsection (1) of section 5341 960.195, Florida Statutes, is amended to read: 5342 960.195 Awards to elderly persons or disabled adults for 5343 property loss.— 5344 (1) Notwithstanding the criteria in s. 960.13, for crime 5345 victim compensation awards, the department may award a maximum 5346 of $500 on any one claim and a lifetime maximum of $1,000 on all 5347 claims to elderly persons or disabled adults who suffer a 5348 property loss that causes a substantial diminution in their 5349 quality of life when: 5350 (b) The criminal or delinquent act is reported to law 5351 enforcement authorities within: 5352 1. Seventy-two 72 hours, if such crime or act occurred 5353 before October 1, 2019; or 5354 2. Five days, if such crime or act occurred on or after 5355 October 1, 2019, 5356 5357 unless the department, for good cause shown, finds the delay to 5358 have been justified;
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June 28, 2019 Criminal Procedure Rules Committee 550 F L O R I D A H O U S E O F R E P RESENTATIVE S
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5359 Section 74. Section 960.196, Florida Statutes, is amended 5360 to read: 5361 960.196 Relocation assistance for victims of human 5362 trafficking.— 5363 (1) Notwithstanding the criteria specified in ss. 5364 960.07(2) and 960.13 for crime victim compensation awards, the 5365 department may award a one-time payment of up to $1,500 for any 5366 one claim and a lifetime maximum of $3,000 to a victim of human 5367 trafficking who needs urgent assistance to escape from an unsafe 5368 environment directly related to the human trafficking offense. 5369 (2) In order for an award to be granted to a victim for 5370 relocation assistance: 5371 (a) There must be proof that a human trafficking offense, 5372 as described in s. 787.06(3)(b), (d), (f), or (g), was 5373 committed. 5374 (b)1. For a crime occurring before October 1, 2019, the 5375 crime must be reported to the proper authorities and the claim 5376 must be filed within 1 year, or 2 years with good cause, after 5377 the date of the last human trafficking offense, as described in 5378 s. 787.06(3)(b), (d), (f), or (g). 5379 2. For a crime occurring on or after October 1, 2019, the 5380 crime must be reported to the proper authorities and the claim 5381 must be filed within 3 years, or 5 years with good cause, after 5382 the date of the last human trafficking offense, as described in 5383 s. 787.06(3)(b), (d), (f), or (g).
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5384 3. In a case that exceeds the reporting and filing 2-year 5385 requirement due to an active and ongoing investigation, a state 5386 attorney, statewide prosecutor, or federal prosecutor may 5387 certify in writing a human trafficking victim's need to relocate 5388 from an unsafe environment due to the threat of future violence 5389 which is directly related to the human trafficking offense. 5390 (c) The victim's need must be certified by a certified 5391 domestic violence or rape crisis center in this state, except as 5392 provided in paragraph (b). The center's certification must 5393 assert that the victim is cooperating with the proper 5394 authorities and must include documentation that the victim has 5395 developed a safety plan. 5396 (3) Relocation payments for a human trafficking claim 5397 shall be denied if the department has previously approved or 5398 paid out a domestic violence or sexual battery relocation claim 5399 under s. 960.198 or s. 960.199 to the same victim regarding the 5400 same incident. 5401 Section 75. Subsection (2) of section 985.557, Florida 5402 Statutes, is amended to read: 5403 985.557 Direct filing of an information; discretionary and 5404 mandatory criteria.— 5405 (2) MANDATORY DIRECT FILE.— 5406 (a) With respect to any child who was 16 or 17 years of 5407 age at the time the alleged offense was committed, the state 5408 attorney shall file an information if the child has been
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5409 previously adjudicated delinquent for an act classified as a 5410 felony, which adjudication was for the commission of, attempt to 5411 commit, or conspiracy to commit murder, sexual battery, armed or 5412 strong-armed robbery, carjacking, home-invasion robbery, 5413 aggravated battery, or aggravated assault, and the child is 5414 currently charged with a second or subsequent violent crime 5415 against a person. 5416 (b) With respect to any child 16 or 17 years of age at the 5417 time an offense classified as a forcible felony, as defined in 5418 s. 776.08, was committed, the state attorney shall file an 5419 information if the child has previously been adjudicated 5420 delinquent or had adjudication withheld for three acts 5421 classified as felonies each of which occurred at least 45 days 5422 apart from each other. This paragraph does not apply when the 5423 state attorney has good cause to believe that exceptional 5424 circumstances exist which preclude the just prosecution of the 5425 juvenile in adult court. 5426 (c) The state attorney must file an information if a 5427 child, regardless of the child's age at the time the alleged 5428 offense was committed, is alleged to have committed an act that 5429 would be a violation of law if the child were an adult, that 5430 involves stealing a motor vehicle, including, but not limited 5431 to, a violation of s. 812.133, relating to carjacking, or s. 5432 812.014(2)(c)6., relating to grand theft of a motor vehicle, and 5433 while the child was in possession of the stolen motor vehicle
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June 28, 2019 Criminal Procedure Rules Committee 553 F L O R I D A H O U S E O F R E P RESENTATIVE S
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5434 the child caused serious bodily injury to or the death of a 5435 person who was not involved in the underlying offense. For 5436 purposes of this section, the driver and all willing passengers 5437 in the stolen motor vehicle at the time such serious bodily 5438 injury or death is inflicted shall also be subject to mandatory 5439 transfer to adult court. "Stolen motor vehicle," for the 5440 purposes of this section, means a motor vehicle that has been 5441 the subject of any criminal wrongful taking. For purposes of 5442 this section, "willing passengers" means all willing passengers 5443 who have participated in the underlying offense. 5444 (d)1. With respect to any child who was 16 or 17 years of 5445 age at the time the alleged offense was committed, the state 5446 attorney shall file an information if the child has been charged 5447 with committing or attempting to commit an offense listed in s. 5448 775.087(2)(a)1.a.-p., and, during the commission of or attempt 5449 to commit the offense, the child: 5450 a. Actually possessed a firearm or destructive device, as 5451 those terms are defined in s. 790.001. 5452 b. Discharged a firearm or destructive device, as 5453 described in s. 775.087(2)(a)2. 5454 c. Discharged a firearm or destructive device, as 5455 described in s. 775.087(2)(a)3., and, as a result of the 5456 discharge, death or great bodily harm was inflicted upon any 5457 person. 5458 2. Upon transfer, any child who is:
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5459 a. Charged under sub-subparagraph 1.a. and who has been 5460 previously adjudicated or had adjudication withheld for a 5461 forcible felony offense or any offense involving a firearm, or 5462 who has been previously placed in a residential commitment 5463 program, shall be subject to sentencing under s. 775.087(2)(a), 5464 notwithstanding s. 985.565. 5465 b. Charged under sub-subparagraph 1.b. or sub-subparagraph 5466 1.c., shall be subject to sentencing under s. 775.087(2)(a), 5467 notwithstanding s. 985.565. 5468 3. Upon transfer, any child who is charged under this 5469 paragraph, but who does not meet the requirements specified in 5470 subparagraph 2., shall be sentenced under s. 985.565; however, 5471 if the court imposes a juvenile sanction, the court must commit 5472 the child to a high-risk or maximum-risk juvenile facility. 5473 4. This paragraph shall not apply if the state attorney 5474 has good cause to believe that exceptional circumstances exist 5475 that preclude the just prosecution of the child in adult court. 5476 5. The Department of Corrections shall make every 5477 reasonable effort to ensure that any child 16 or 17 years of age 5478 who is convicted and sentenced under this paragraph be 5479 completely separated such that there is no physical contact with 5480 adult offenders in the facility, to the extent that it is 5481 consistent with chapter 958. 5482 Section 76. Paragraphs (a) and (b) of subsection (4) of 5483 section 985.565, Florida Statutes, are amended to read:
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5484 985.565 Sentencing powers; procedures; alternatives for 5485 juveniles prosecuted as adults.— 5486 (4) SENTENCING ALTERNATIVES.— 5487 (a) Adult sanctions.— 5488 1. Cases prosecuted on indictment.—If the child is found 5489 to have committed the offense punishable by death or life 5490 imprisonment, the child shall be sentenced as an adult. If the 5491 juvenile is not found to have committed the indictable offense 5492 but is found to have committed a lesser included offense or any 5493 other offense for which he or she was indicted as a part of the 5494 criminal episode, the court may sentence as follows: 5495 a. As an adult; 5496 b. Under chapter 958; or 5497 c. As a juvenile under this section. 5498 2. Other cases.—If a child who has been transferred for 5499 criminal prosecution pursuant to information or waiver of 5500 juvenile court jurisdiction is found to have committed a 5501 violation of state law or a lesser included offense for which he 5502 or she was charged as a part of the criminal episode, the court 5503 may sentence as follows: 5504 a. As an adult; 5505 b. Under chapter 958; or 5506 c. As a juvenile under this section. 5507 3. Notwithstanding any other provision to the contrary, if 5508 the state attorney is required to file a motion to transfer and
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5509 certify the juvenile for prosecution as an adult under s. 5510 985.556(3) and that motion is granted, or if the state attorney 5511 is required to file an information under s. 985.557(2)(a) or 5512 (b), the court must impose adult sanctions. 5513 4. Any sentence imposing adult sanctions is presumed 5514 appropriate, and the court is not required to set forth specific 5515 findings or enumerate the criteria in this subsection as any 5516 basis for its decision to impose adult sanctions. 5517 5. When a child has been transferred for criminal 5518 prosecution as an adult and has been found to have committed a 5519 violation of state law, the disposition of the case may include 5520 the enforcement of any restitution ordered in any juvenile 5521 proceeding. 5522 (b) Juvenile sanctions.—For juveniles transferred to adult 5523 court but who do not qualify for such transfer under s. 5524 985.556(3) or s. 985.557(2)(a) or (b), the court may impose 5525 juvenile sanctions under this paragraph. If juvenile sentences 5526 are imposed, the court shall, under this paragraph, adjudge the 5527 child to have committed a delinquent act. Adjudication of 5528 delinquency shall not be deemed a conviction, nor shall it 5529 operate to impose any of the civil disabilities ordinarily 5530 resulting from a conviction. The court shall impose an adult 5531 sanction or a juvenile sanction and may not sentence the child 5532 to a combination of adult and juvenile punishments. An adult 5533 sanction or a juvenile sanction may include enforcement of an
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5534 order of restitution or probation previously ordered in any 5535 juvenile proceeding. However, if the court imposes a juvenile 5536 sanction and the department determines that the sanction is 5537 unsuitable for the child, the department shall return custody of 5538 the child to the sentencing court for further proceedings, 5539 including the imposition of adult sanctions. Upon adjudicating a 5540 child delinquent under subsection (1), the court may: 5541 1. Place the child in a probation program under the 5542 supervision of the department for an indeterminate period of 5543 time until the child reaches the age of 19 years or sooner if 5544 discharged by order of the court. 5545 2. Commit the child to the department for treatment in an 5546 appropriate program for children for an indeterminate period of 5547 time until the child is 21 or sooner if discharged by the 5548 department. The department shall notify the court of its intent 5549 to discharge no later than 14 days prior to discharge. Failure 5550 of the court to timely respond to the department's notice shall 5551 be considered approval for discharge. 5552 3. Order disposition under ss. 985.435, 985.437, 985.439, 5553 985.441, 985.45, and 985.455 as an alternative to youthful 5554 offender or adult sentencing if the court determines not to 5555 impose youthful offender or adult sanctions. 5556 5557 It is the intent of the Legislature that the criteria and 5558 guidelines in this subsection are mandatory and that a
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5559 determination of disposition under this subsection is subject to 5560 the right of the child to appellate review under s. 985.534. 5561 Section 77. Except as otherwise expressly provided in this 5562 act and except for this section, which shall take effect upon 5563 this act becoming a law, this act shall take effect October 1, 5564 2019.
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